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L 


HARVARD 
HISTORICAL    STUDIES 


PUBLISHED   UNDER   THE   DIRECTION   OF   THE   DEPARTMENT   OF 
HISTORY   AND   GOVERNMENT   FROM   THE   INCOME    OF 


Cl^e  ^tmv  Wiatnn  %mt^  JfunD 


Volume  VIII. 


THE 


COUNTY    PALATINE 


OF 


DURHAM 


a  ^tuUp  m  Constitutional  ©isitorp 


BY 


GAILLARD   THOMAS   LAPSLEY,  Ph.D. 

V 


**  Episcopus  Dunelmensis  duos  habet  status,  videlicet,  statum  episcopi  quoad 
spiritualia  et  statum  comitis  palacii  quoad  tenementa  sua  temporalia" 

Rot.  Parl.,  21  Edw.  I,  i.  103 


LONGMANS,   GREEN,   AND   CO. 

91  AND  93  FIFTH  AVENUE,  NEW   YORK 
LONDON    AND    BOMBAY 

1900 


J5  3f  t^ 


Copyright,  1899, 
By  the  President  and  Fellows  of  Harvard  College. 


University  Press: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


TO 

H.   L. 

AND 

K.   A.   W.   L. 


328623 


PREFACE. 


The  explanation  of  the  object  and  scope  of  the  present 
study  contained  in  the  first  chapter  leaves  very  little  to  be 
said  by  way  of  preface.  Yet,  it  may  not  be  amiss  to  point  out 
that  the  book  rests  entirely  upon  first-hand  sources  of  infor- 
mation which,  for  the  most  part,  are  still  inedited.  I  have 
tried  at  every  point  to  give  scholars  the  readiest  means  of 
referring  to  the  original  authorities,  and  hope  that  the  labor 
devoted  to  proof-reading  and  verification  will  not  have  been 
entirely  fruitless.  There  remains  only  the  pleasant  duty  of 
acknowledging  obligations. 

My  friend  and  master  Professor  Charles  Gross  of  Harvard 
has  from  the  beginning  of  my  work  given  me  the  benefit  of 
his  learning  and  wisdom  with  unfailing  generosity  and  patience. 
My  appreciation  of  his  help  I  can  not  easily  express;  if  he 
finds  anything  worthy  in  my  book  he  will  know  that  his  efforts 
have  not  been  wholly  in  vain. 

Professor  Maitland  has  laid  under  a  heavy  obligation  all 
those  who  work  at  the  early  history  of  England.  But  I  most 
gratefully  acknowledge  a  very  special  indebtedness  to  him  for 
written  and  spoken  words  that  have  cast  light  on  dark  places 
and  given  the  clue  to  more  than  one  baffling  problem. 

To  the  officials  of  the  Public  Record  Office,  and  especially  to 
Mr.  Hubert  Hall,  I  beg  to  offer  my  sincere  thanks  for  valuable 
assistance  and  unvarying  courtesy.     I  wouljd  also  express  my 


vni  PREFACE. 

thanks  for  help  most  kindly  afforded  me  by  the  Dean  of  Dur- 
ham ;  the  Reverend  Canon  Greenwell ;  De  Bock  Porter,  Esqre., 
Secretary  of  the  Ecclesiastical  Commission  ;  T.  Milvain,  Esqre., 
Q.  C,  Chancellor  of  the  County  Palatine  of  Durham;  R.  G. 
Marsden,  Esqre.,  of  Lincoln's  Inn;  and  Professor  J.  H.  Beale 
of  Harvard. 

G.  T.  L. 

Cambridge,  Massachusetts, 
December  5,  1899. 


CONTENTS. 


10. 


§12 
§13 
§14 
§15 


CHAPTER   I. 

The  Origin  of  the  Palatinate. 

Page 

§  I.     Object  and  Nature  of  this  Work i 

§  2.     The  Comes  Palatii 3 

§3.     Origin  of  the  County  Palatine  of  Durham 12 

CHAPTER   U. 

The  Bishop  as  Lord  Palatine. 

§  4.  General  Nature  of  the  Bishop's  Regality 31 

§  5.  The  Bishop's  Regality  in  Imperio    • 31 

§  6.  The  Bishop's  Regality  in  Dominio 54 

§  7.  The  Bishop's  Regality  in  Jurisdictione 68 

§  8.  General  Estimate  of  the  Bishop's  Regality 75 

CHAPTER   III. 

The  Officers  of  the  Palatinate. 

§  9.     Officers  of  State 11 

Officers  of  the  Household 99 


CHAPTER   IV. 

The  Assembly  and  the  Bishop's  Counql. 

Development  of  the  Assembly 106 

Composition  and  Functions  of  the  Assembly      .     .     .     .     '.     .  114 

Origin  and  Development  of  the  Council 136 

Functions  of  the  Council >     •  149 

Relations  of  the  Council  and  the  Bishop 152 


X  CONTENTS, 

CHAPTER   V. 

The  Judiciary  of  the  Palatinate. 

Page 

§  i6.     Development  of  the  Judiciary  from  635  until  1195  .     ....  156 

§17.     The  Transition  from  a  Feudal  to  a  Royal  Court 165 

§  18.     Subsequent  Growth  of  the  Palatine  Judiciary  in  the  Thirteenth 

Century 173 

§  19.     The  Commission  of  the  Peace  and  other  Later  Developments  .  178 

§  20.     Judicial  Aspect  of  the  Bishop's  Council 180 

§  21.     The  Chancery 186 

§  22.     The  Court  of  Exchequer 190 

§  23.     The  Ecclesiastical  Courts 191 

§  24.     The  Courts  of  Admiralty  and  Marshalsea 193 

§  25.     Local  Courts 194 

§  26.     The  Act  of  Resumption  in  1536 196 

§  27.     The  Palatine  Judiciary  in  the   Seventeenth   and   Eighteenth 

Centuries 198 

§  28.     The  Palatine  Judiciary  in  the  Present  Century 203 

CHAPTER   VI. 
The  Palatine  Courts  in  Relation  to  the  Royal  Judiciary. 


Competence  of  the  Palatine  Courts 209 

Summons  and  Arrest 216 

Voucher  to  Warranty 232 

The  Venue 234 

Judgment  and  Execution 243 

Some  Minor  Questions 256 

The  Council  of  the  North  and  the  Palatine  Judiciary  ....  259 


CHAPTER  VII. 
Financial  Arrangements  in  the  Palatinate. 

36.  The  Palatine  Exchequer 264 

37.  The  Bishop's  Revenue 271 

38.  Financial  Relations  of  the  Palatinate  and  the  Central  Govern- 

ment       294 


CONTENTS.  XI 

CHAPTER   VIII. 

Military  and  Naval  Arrangements  in  the  Palatinate. 

Page 

39.  Military  Relations  with  the  Central  Government 301 

40.  Naval  Arrangements -    V^^ 


APPENDIXES. 

I.     Geoffrey  Fitz  Geoffrey's  Case S'S 

II.     The  Admiralty  Jurisdiction  of  the  Bishops  of  Durham       ...  317 

III.  The  Records  of  the  Palatinate 327 

IV.  List  of  Works  Cited 338 


The  County  Palatine  of  Durham. 


CHAPTER    I. 

THE    ORIGIN   OF  .THE   PALATINATE. 
§  I.   Object  and  Nature  of  this  "Work. 

During  the  middle  ages,  and  in  a  restricted  sense  up  to  the 
present  century,  the  county  of  Durham  was  withdrawn  from  the 
ordinary  administration  of  the  kingdom  of  England  and  governed 
by  its  Bishop  with  almost  complete  local  independence.  But  the 
community  of  Durham  had  the  same  social  and  economic  require- 
ments and  dangers  as  the  rest  of  the  kingdom  ;  accordingly 
there  developed  in  the  county  a  group  of  institutions  reproduc- 
ing all  the  essential  characteristics  of  the  central  government. 
To  exhibit  the  growth  of  these  institutions,  their  organization, 
and  their  relation  to  the  central  government  is  the  object  of  the 
present  study,  which  thus  becomes  the  constitutional  history  of 
an  English  county.  For  several  reasons  it  was  desirable  that 
this  work  should  be  done.  In  the  first  place,  the  three  English 
palatinates  of  Durham,  Chester,  and  Lancaster  were  in  effect 
great  fiefs,  answering  in  most  essentials  to  the  county  or  duchy 
of  medieval  France.  They  constitute,  therefore,  a  striking  ex- 
ception to  all  generalizations  about  English  feudalism,  and  hence 
an  account  of  their  organization,  setting  forth  the  details  of  this 
exception,  becomes  a  contribution  to  the  feudal  history  of  Eng- 
land. These  palatinates,  however,  did  not  differ  very  greatly 
among  themselves  ;  and  since  Durham  has  by  far  the  longest 
independent  history  it  has  been  chosen  to  stand  for  the  others. 

Again,  these  privileged  districts  with  their  special  jurisdictions 
frequently  stood  in  the  way  of  the  administration  of  justice. 
The  problems  arising  out  of  such  collisions,  and  the  solutions 


-  :2:^^\  ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

which  they  received  at  the  hands  of  fourteenth  and  fifteenth 
century  lawyers,  form  an  interesting  chapter  in  the  history  of 
English  law,  and  are  of  value  also  as  illustrating  the  fashion 
in  which  the  principles  of  the  common  law  were  interpreted 
to  meet  highly  exceptional  cases  and  to  formulate  new  rules 
of  law. 

The  palatinate  of  Durham  was  in  its  nature  a  microcosm  of 
the  kingdom,  although  lacking  the  capacity  to  develop  a  strong 
central  government  because  of  the  substitution  of  an  elective 
mitre  for  an  hereditary  crown.  Its  history  will  in  some  measure 
illustrate  the  danger  which  England  escaped,  for  the  Bishop  had 
his  feudatories,  who  struggled  for  and  obtained  a  high  degree 
of  local  independence.  We  have,  then,  in  Durham  a  tiny 
feudal  England  surviving  into  the  Tudor  period,  when  it  was 
summarily  dealt  with.  Precisely  this  survival,  again,  throws 
light  on  the  growth  of  the  English  constitution,  and  particu- 
larly on  the  development  of  absolute  monarchy  and  English 
conservatism. 

Although  during  the  fifteenth  century  the  immunities  of  the 
palatinate  received  the  fullest  recognition  from  the  crown,  they 
were  disregarded  whenever  necessity  arose  ;  but  every  infringe- 
ment of  this  sort  was  styled  an  exception,  and  its  repetition  was 
carefully  guarded  against  by  letters  of  indemnity  or  the  like 
means.  In  legal  relations  similar  devices  were  found  by  which 
the  Bishop's  privileges  might  be  disregarded  without  injuring  his 
dignity.  Less  consideration,  however,  was  exhibited  under  the 
vigorous  administration  of  the  Tudors,  when  the  privileges  of  the 
palatinate  were  largely  curtailed,  though  the  form  and  dignity  of 
the  institution  were  carefully  preserved  and  continued  into  the 
present  century.  But  even  the  generation  that  passed  the  Re- 
form Bill  and  instituted  the  Ecclesiastical  Commission  was  not 
without  that  spirit  of  conservatism  which  the  history  of  the 
palatinate  so  frequently  illustrates.  Accordingly,  although  the 
Bishop  was  deprived  of  his  dignity  and  all  temporal  jurisdic- 
tion, and  the  organization  of  the  palatinate  was  reduced  to  two 
local  courts,  the  county  palatine  was  preserved,  with  the  title 
vested  in  the  crown.  To-day  the  queen-empress  is  also  countess 
palatine  of  Durham. 


§  2]  THE  COMES  PALATII,  3 

Before  undertaking  the  detailed  study  of  the  various  institu- 
tions of  the  palatinate,  it  will  be  necessary  to  dispose  of  several 
preliminary  questions,  the  most  important  of  which  relate  to  the 
origin  and  use  of  the  term  "  comes  palatinus  "  in  England,  and 
to  the  origin  of  the  franchise  the  holder  of  which  was  distin- 
guished by  this  title. 

§  2.    The  Comes  Palatii. 

The  origin  of  the  title  "comes  palatinus"  or  "comes  palatii" 
—  both  forms  seem  to  be  used  Indifferently  —  may  probably  be 
traced  to  the  somewhat  magniloquent  nomenclature  of  the  late 
Roman  Empire.^  The  adjective  "  palatinus "  indicates  a  very 
close  relation  to  the  person  of  the  sovereign,  and  in  this  sense 
the  word  is  used  in  the  Notitia  Dignitatum.^  It  was  peculiarly 
applicable  therefore  to  the  office  that  developed  in  western 
Europe  under  the  Teutonic  or  barbarian  administration;  and 
although  the  process  can  not  be  traced,  there  is  no  doubt 
that  the  title  was  borrowed  by  the  invaders  from  the  imperial 
court.  This  officer  is  found  among  all  the  Teutonic  peoples 
after  the  migrations  had  left  them  in  more  or  less  fixed  homes  ;  ^ 
he  does  not,  however,  occur  among  the  Saxons,  and  the  term 
was  not  used  in  the  British  isles  until  a  very  much  later 
period. 

In  the  Merovingian  period  the  comes  palatinus  was  a  court 
official  who  assisted  or  represented  the  king  in  his  judicial  activ- 
ity. Although,  like  the  other  officers  of  the  court,  he  had  very 
varied  functions,  his  characteristic  attributes  are  connected  with 
royal  law  and  justice.^  He  was  an  indispensable  assistant  at  the 
king's  court,  where  he  bore  testimony,  prepared  the  pleas,  and 

^  See  A.  Tardif,  Des  Comtes  du  Palais;  in  Biblioth^que  de  I'ficole  des 
Chartes,  deuxi^me  sdrie  (1848,  1849),  v.  242. 

^  See,  for  example,  Bocking's  edition,  i.  44,  where  a  number  of  the  officers 
under  the  "  comes  privatarum  "  are  specified,  and  the  rest  described  collec- 
tively as  "alii  palatini."     See  also  Ibid.,  i.  43,  ii.  54,  294,  370  £f. 

^  See  Ducange,  Glossarium,  s.  v.  "  Comes,"  where  are  cited  numerous 
instances  of  the  use  of  the  title  "comes  palatinus  "  in  Spain  and  Italy,  and 
among  the  Franks  and  Burgundians. 

^  Brunner,  Deutsche  Rechtsgeschichte,  ii.  §  73. 


4  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.   I. 

performed  a  number  of  other  important  offices.  He  had,  how- 
ever, no  independent  duties,  but  was  necessary  as  the  connect- 
ing link  between  the  chancellor,  who  had  no  official  place  in  the 
court,  and  the  court  itself,  which  so  constantly  had  need  to  refer 
to  matters  recorded  or  preserved  by  the  chancellor.^  The  earli- 
est mention  of  this  officer  in  Merovingian  Gaul  refers  to  the 
reign  of  Sigibert,  A.  d.  561-575.2 

Under  the  Karolingian  rulers  the  office  of  the  comes  palatii 
undergoes  considerable  development,  as  a  result  of  the  increased 
and  increasing  predominance  of  royal  law  and  justice.  The 
comes  palatii  obtains  a  special  notarial  department,  for  the 
preparation  of  documents  necessary  for  the  royal  court,  and 
from  his  constant  representation  of  the  king  in  that  tribunal 
comes  to  have  a  certain  independent  jurisdiction.^  Finally,  as 
the  dispenser  in  the  royal  courts  of  these  special  advantages  of 
royal  justice,  he  came  to  be  the  proper  channel  through  which 
the  king's  favor  flowed.  Thus  by  regulating  audiences,  prepar- 
ing and  sorting  petitions,  and  by  the  like  offices,  he  obtained  an 
important  ministerial  position.  The  point  that  must  not  be  lost 
sight  of  in  connection  with  the  growing  independence  of  the 
comes  palatii  is  that  his  powers  and  even  his  existence  depended 
on  the  strength  of  the  king.  He  did  not  perform  those  func- 
tions which  the  king  without  diminution  of  his  regality  might 
delegate  to  his  officers :  he  was  the  very  expression  or  projec- 
tion of  that  regality.  This  fact  had  very  important  consequences 
when  the  Karolingian  system  began  to  break  up  and  the  comites 
palatii  tended  to  localize  themselves,  for  the  principle  contained 
possibilities  of  indefinite  expansion.  This  result  was  already 
foreshadowed  in  the  multifarious  activities  of  the  comes  palatii 
under  the  Karolingian  rulers.  He  led  the  army,  he  was  sent  as 
a  missuSy  he  was  even  commissioned  to  determine  legal  matters 

1  Brunner,  ii.  §  73.     Cf.  Schroder,  Rechtsgeschichte,  136-138. 

2  Gregory  of  Tours,  Historia  Ecclesiastica,  lib.  v.  cap.  xviii,  in  Mon. 
Germ.  Hist.,  Scriptores,  i.  215. 

3  This  consisted  principally  in  the  furnishing  of  equitable  remedies  for 
persons  who,  being  poor  or  of  low  estate,  sought  the  aid  of  the  king.  Thus, 
this  jurisdiction  was  ex  auctoritate  regia^  and  had  all  the  advantages  of  royal 
processes.  The  first  recorded  instance  of  such  independent  jurisdiction  is 
in  801.     See  Brunner,  Deutsche  Rechtsgeschichte,  ii.  §73. 


§  2j  THE   COMES  P ALA  Til.  5 

not  arising  in  his  own  or  in  the  royal  jurisdiction.^  The  office, 
too,  was  multiplied  ;  probably  every  important  division  of  the 
empire  was  represented  at  court  by  a  comes  palatii  of  its  own 
race.^ 

After  the  disappearance  of  a  strong  central  authority  and  the 
subsequent  wreck  of  the  Karolingian  empire,  the  development 
of  the  comes  palatii  becomes,  for  the  present  purpose,  peculiarly 
interesting.  In  Italy,  during  the  centuries  that  lay  between  the 
death  of  Charles  the  Great  and  the  accession  of  the  emperor 
Henry  II,  the  title  of  comes  palatii  was  regularly  but  somewhat 
vaguely  employed.  In  the  ninth  century  the  rulers  of  Italy  had 
had  separate  officers  of  this  sort,  who,  by  reason  of  the  frequent 
absences  of  the  sovereigns,  were  left  in  a  position  of  high  local 
authority.  This  precedent  seems  to  have  given  the  necessary 
impulse ;  and  subsequently,  infected  with  the  general  tendency 
toward  anarchy,  imperial  niissi,  who  had  established  themselves 
here  and  there,  but  particularly  in  the  marches  or  border  coun- 
ties, began  to  style  themselves  comites  palatii  and  to  build  up  little 
independent  states.  To  do  away  with  these  was  one  of  the  re- 
forms undertaken  by  Henry  II,  but  it  was  without  permanent 
success.  In  the  twelfth  century  and  later  are  found  in  Italy 
localized  comites  palatii,  having  all  the  rights  and  privileges 
usurped  or  otherwise  acquired  by  the  late  Karolingian  missiy 
together  with  others  obtained  directly  from  the  emperor.  The 
character  of  these  functions  shows  that  the  essential  nature  of 
the  title  had  not  been  lost  sight  of,  for  they  consist  of  the  power 
to  nominate  notaries  and  judges,  to  legitimize  bastards,  to  con- 
fer arms  and  academic  degrees,  and  (but  this  right  comes  even 
later)  to  confer  nobility  and  knighthood,  and  even  to  create  other 
comites  palatii.^ 

In  Germany  the  development  was  somewhat  different;  but 
the  ultimate  outcome,  which  leaves  the  comes  palatii  as  a 
local  independent  ruler  with  powers  of  a  high  if  somewhat 
indefinite  nature,  is  even  better  illustrated  here  than  in  Italy. 

^  Waitz,  Deutsche  Verfassungsgeschichte  (2d  ed.),  iii.  510  ff. 
2  Brunner,  Deutsche  Rechtsgeschichte,  ii.  §  73. 

*  Ficker,  Forschungen  zur  Reichs-  und  Rechtsgeschichte  Italiens,  i. 
312  £f.,  ii.  66  ff.;  Brunner,  Deutsche  Rechtsgeschichte,  ii.  §  73. 


6  THE    ORIGIN  OF   THE  PALATINATE.  [Ch.  I. 

After  the  death  of  Ludwig  the  German  in  876  the  old  Frankish 
comes  palatii  disappears.  In  the  next  century,  however,  we 
meet  with  four  comites  palatii,  one  in  each  of  the  great  duchies. 
These  officers,  it  has  been  suggested,  were  acting  as  royal 
missi  stationed  by  the  king  to  restrain  the  local  independence 
of  the  stem-dukes,  and  there  is  some  evidence  in  support  of 
this  theory,  although  against  it  has  been  urged  the  fact  that 
local  and  even  ducal  families  are  sometimes  found  holding  the 
title.  The  comes  palatii  of  Lorraine,  however,  who  was  accred- 
ited with  a  kind  of  supremacy  over  his  fellows,  somewhat  fanci- 
fully derived  from  the  presence  in  his  domain  of  the  imperial 
city  of  Aachen,  becomes  in  the  tenth  century  of  much  impor- 
tance. This  noble  was  deliberately  invested  by  Otto  I  with 
hereditary  and  independent  jurisdiction,  under  the  name  not  of 
duke  but  of  comes  palatii,  or  Pfalzgraf.  It  was  probably  part 
of  Otto's  scheme  to  create  a  new  state  in  close  relation  to  him- 
self, and  the  town  of  Aachen,  where  there  was  no  local  duke, 
formed  a  convenient  centre ;  while  the  extensive  possibilities  of 
a  title  like  that  of  comes  palatii  made  appropriate  almost  any 
measure  of  local  independence.  The  office,  thus  artificially  lifted 
into  a  higher  plane  than  it  had  reached  in  any  other  country, 
has  a  history  of  its  own,  which  need  not  be  traced  here.^ 

In  France  proper  the  history  of  the  comes  palatii  is  different 
again.  The  officer  does  not  here  become  a  localized  feudal  noble 
until  the  twelfth  century,  and  then  not  strictly  on  his  own 
account.  The  comes  palatii  survived  into  the  eleventh  century 
as  an  official  of  the  palace,  and  as  a  justice  retaining  the  func- 
tions and  duties  which  he  had  had  under  the  Karolingians.'* 
A  great  change  came  with  the  development  of  the  royal  house- 
hold in  the  eleventh  century  when  the  Karolingian  comes 
palatii  disappeared,  leaving  the  larger  part  of  his  functions  to  be 
performed  by  the  seneschal.^  The  title,  however,  continued  to 
be  loosely  used ;   thus  Baldwin  of  Flanders,  when  he  was  regent 

1  Hausser,  Geschichte  der  Rheinischen  Pfalz,  i.  38-48  ;  Waltz,  Deutsche 
Verfassungsgeschichte,  vii.  167  £E. 

2  A.  Tardif,  Des  Comtes  du  Palais. 

2  Brussel,  Usage  des  Fiefs,  1.  373  fF. ;  Luchaire,  Manuel  des  Institutions 
Fran^alses,  521. 


§  2]  THE   COMES  P ALA  Til,  7 

for  Philip  I,  styled  himself  comes  palatii,  with  reference  perhaps 
to  the  royal  functions  which  he  was  discharging.^  But,  although 
spasmodic  and  irregular  cases  of  this  sort  occur  from  time  to 
time,  there  is  perceptible  a  growing  tendency  toward  the  exclu- 
sive use  of  the  title  by  members  of  the  house  of  Blois-Cham- 
pagne.  At  the  end  of  the  twelfth  century  it  was  employed 
regularly  by  the  eldest  son  of  this  family  as  head  of  the  house, 
although  the  crown  offered  a  certain  theoretic  opposition  to  its 
hereditary  transmission.^  There  is  some  controversy  as  to  how 
the  title  came  to  attach  itself  to  the  family,  and  —  what  is  more 
important  —  as  to  the  rights  and  privileges  conveyed  by  it. 
One  writer  states  that  Herbert  II  of  Vermandois,  in  the  begin- 
ning of  the  tenth  century,  obtained  the  title  from  Lothar  and 
eventually  passed  it  on  to  the  house  of  Blois ;  ^  but  this  view  is 
inconsistent  with  the  theory  of  Tardif,  that  the  title  did  not 
become  hereditary  until  the  end  of  the  twelfth  century. 

With  regard  to  the  significance  of  the  title  authorities  differ 
even  more  seriously.  The  historian  of  Champagne  contends 
that  it  implies  no  more  than  a  dignity,  an  honorary  supremacy 
among  the  great  feudatories.^  This  author,  however,  seems  to 
have  confused  the  term  comes  palatii,  or  palatinus,  with  the 
adjective  palatinus,  or  palatini,  which  was  applied  to  the  mem- 
bers of  the  king's  narrow  or  secret  council.^  It  is  better,  there- 
fore, to  follow  a  later  authority,  who  holds  that  the  counts  of 
Champagne  made  use  of  the  title  to  exercise  in  their  domains  a 
certain  sovereign  jurisdiction,  as  though  by  delegation  of  royal 
power.^  There  is,  however,  room  for  reasonable  doubt  as  to 
whether  the  title  was  the  source  of  this  sovereign  jurisdiction, 

^  Brussel,  Usage,  i.  377 ;  Luchaire,  Manuel,  469. 

2  A.  Tardif,  Des  Comtes  du  Palais. 

^  C.  Mortet,  in  La  Grande  Encyclopddie,  s.  v.  "  Comte." 

^  "  La  qualite  de  palatin  avait  d^jk  le  caract^re  purement  honorifique 
qu'ont  en  France,  depuis  des  siecles,  tous  les  litres  nobiliaires : "  Arbois 
de  Jubainville,  Histoire  de  Champagne,  ii.  412. 

**  Luchaire,  Institutions  Monarchiques,  i.  196  ff. 

^  "  Les  comtes  de  Champagne  se  fondaient  sur  ce  titre,  qui  semblait  im  • 
pliquer  une  delegation  de  la  justice  royale,  pour  exercer  dans  leurs  domaines 
une  juridiction  souveraine :  "  C.  Mortet,  in  La  Grande  Encyclopddie,  s,  v. 
"Comte." 


8  THE   ORIGIN  OF   THE  PALATINATE.  [Ch.  I. 

or  whether  it  was  afterward  pressed  into  service  to  account  for 
or  to  justify  that  jurisdiction.  Certain  it  is,  in  any  case,  that  this 
county  enjoyed  very  considerable  local  independence,  and  that 
when  the  time  came  for  the  general  supremacy  of  royal  institu- 
tions the  local  court,  the  Grands  Jours  de  Champagne,  like  the 
fichiquier  of  Normandy,  survived  in  a  modified  form.^  It  is  also 
clear — and  this  for  the  present  purpose  is  of  importance  —  that 
the  counts  of  Champagne  were  commonly  distinguished  by  the 
title  comites  palatini,  and  that  in  the  thirteenth  century  this  cus- 
tom was  recognized  in  England.  Thus  in  1226  Count  Theobald, 
in  a  charter  issued  to  his  seneschal,  describes  himself  as  *'  Cam- 
panie  et  Brie  comes  Palatinus ;  "  ^  and  an  English  document  of 
1249  speaks  of  "Simon  de  Monteforti,  Sorarius  [sic]  Regis, 
missus  ad  Theobaldum  Regem  Navarrae,  Campanyae  et  Beriae 
Comitem  Palatinum."  ^  This  point  will  be  taken  up  again ; 
meanwhile,  before  leaving  France  it  may  be  noticed  that 
several  others  of  the  great  feudatories  occasionally  styled  them- 
selves comites  palatii  or  palatini.  The  most  important  of  these 
were  the  counts  of  Toulouse  and  Poitiers.* 

We  must  now  try  to  discover  how  this  somewhat  exotic  title 
found  its  way  into  England,  where  the  office  of  the  true  comes 
palatii  had  never  existed.  The  title  was  first  used  in  connec- 
tion with  England  by  Ordericus  Vitalis,  a  writer  of  much  au- 
thority, who  was  familiar  with  both  English  and  Norman  affairs. 
In  two  famous  passages  he  applies  the  title  unmistakably  to  Odo 
of  Bayeux,  the  half-brother  of  the  Conqueror.  "  Quid  loquar,'^ 
he  writes,  "  de  Odone  Baiocasino  praesule,  qui  consul  palatinus 
erat  et  ubique  cunctis  Angliae  habitatoribus  formidabilis  erat,  ac 
veluti  secundus  rex  passim  jura  dabat  ?  Principatum  super 
omnes  comites  et  regni  optimates  habuit."  ^  And  again,  "  Odo 
nimirum,  ut  supra  dictum  est,  palatinus  Cantiae  consul  erat,  et 

1  Luchaire,  Manuel,  576. 

2  See  Ibid.,  262  note,  where  the  text  of  the  document  is  given. 

3  Cal.  Rot.  Pat.,  33  Hen.  Ill,  23  a.  The  counts  of  Champagne  dropped 
the  title  palatinus  in  documents  addressed  to  the  king.  See  Brussel,  Usage 
des  Fiefs,  i.  373. 

"*  Mortet  in  La  Grande  Encyclopedic,  s.  v.  "  Comte ;  "  Brussel,  Usage  des 
Fiefs,  i.  2,11- 

5  Historia  Ecclesiastica  (ed.  Le  Prevost),  ii.  222,  A.  d.  1071. 


§  2]  THE   COMES  PALATIL  g 

plures  sub  se  comites  virosque  potentes  habebat."  ^  These  pass- 
ages have  been  interpreted  as  showing  that  Odo  was  a  local 
palatine  earl  in  Kent ;  ^  but  the  first  one,  at  least,  refers  obvi- 
ously to  a  jurisdiction  much  more  extensive,  to  powers,  in  short, 
closely  resembling  those  of  the  late  Karolingian  comes  palatii  in 
Italy,  or  those  of  Baldwin  of  Flanders,  when  as  regent  for  Philip 
I  he  calls  himself  comes  palatii.  Odo  had  such  powers,  for,  as 
we  know,  he  was  justiciar  and  regent  during  the  king's  absence.* 
Whether  Ordericus  in  the  second  passage  refers  to  a  local  palati- 
nate makes  Uttle  difference ;  *  in  the  first  one  he  clearly  refers 
to  an  older  conception  of  the  term.  In  any  case,  the  word  was 
entirely  exotic  in  England  in  the  eleventh  and  twelfth  centuries, 
for  no  other  writers  use  it  even  in  speaking  of  Odo,  into 
whose  history  of  course  they  all  enter  with  more  or  less  detail. 
The  same  is  true  of  Roger  Montgomery,  whose  claim  to  have 
had  a  palatine  earldom  in  Shropshire  is  even  more  plausible  than 
that  of  Odo  in  Kent.^ 

In  the  course  of  the  thirteenth  century  the  term  comes  pala- 
tinus  works  itself  into  the  legal  and  historical  vocabulary  of 
England.  The  great  franchise,  afterward  well  known  as  county 
palatine,  was  already  in  existence,  and  there  was  a  demand  for 
some  word  to  characterize  it.  But  similar  institutions  existed, 
although  as  a  result  of  another  development,  in  France  and  the 
Empire.  The  French  form  of  this  institution  must  have  been 
familiar  in  England,  for  in  an  English  document  the  title  is 
applied  to  the  count  of  Champagne.  Some  tidings  also  of  the 
position  and  privileges  of  the  German  Pfalzgraf  must  have 
reached  English  ears,  for  Matthew  Paris,  in  his  account  of  the 

^  Ibid.,  iii.  270,  A.  D.  1087. 

2  See  Freeman,  Norman  Conquest,  iv.  69-72,  and  Stubbs,  i.  309  note.  Dr. 
Stubbs,  however,  does  not  commit  himself  to  this  view. 

^  "  Fratremque  suum  Odonem  Bajocensem  episcopum,  et  Willielmum 
filium  Osberni  .  .  .  Angliae  custodes  reliquens,"  etc. :  Roger  of  Hoveden, 
Chronica,  i.  116.     Cf.  Freeman,  Norman  Conquest,  iv.  73,  105. 

*  This  is  explicitly  denied  by  the  historian  of  Kent,  who  understands 
both  passages  to  refer  to  a  personal  office  in  the  king's  court.  See  Hasted, 
History  of  Kent,  i.  129-130,  and  cf.  Spelman,  Glossarium,  686. 

®  See  Eyton,  Shropshire,  i.  22,  70,  242 ;  Stubbs,  i.  309  note ;  Round, 
Geoffrey  de  Mandeville,  322. 


lO  THE  ORIGIX  OF  THE  PAULTiyATE  [C^.  I. 


t£  Henij  HI,  saijs  that  the  cart  o:  _  ei.cr  :^rr:ei  a 
certain  great  sword  in  token  that  he  was  coimt  o£  the  palace^  and 
had  pofwcr  to  oocice  the  king  if  he  acted  anjasdj.^  Wild  as 
are  these  words,  they  ha^eat  least  this  hearing, — thata  wdl- 
writer  knew  that  die  title  comes  pabtmos  implied  a 
pnrhaps  anmeasored,  degree  <il  privil^e.  and  tibat 
the  cari  of  Chester  enjojed  at  position  so  exalfffd  as  to  justify,  at 
least  in  a  Ktciaiy  sense,  the  amplication  to  him  of  this  exotic  title. 
For  a  strict  ose  of  the  term,  we  torn  natoiaHj  to  BractiMi, 
who  uses  the  word  only  once,  and  then  in  a  passage  in  which 
the  mannsngits  are  at  ¥ariance  (aldioogfa  not  on  this  point)  * 
The  sin^  use  of  a  term  in  a  text  not  jet  wdl  estabfidicd  is 
indeed  meafgre  evidence;  Imt  there  is  something  to  be  said  on 
the  other  side.  The  lugfafy  piivil^ed  firanduse  that  was  after- 
ward  oommoolj  described  as  a  comitj  palatine  was  probably 
known  to  Bracton,  and  known  to  him  even  by  that  name.  There 
are  two  cases  in  his  Note-Book  turning  on  the  liberties  of  the 
eari  of  Chester.  In  the  earlier  one  tibose  liberties  are  pret^ 
lhfiii|E.lJy  exhibited,  and  it  is  rrmarkeil  that  the  Bishop  of 
has  a  similar  fcanrhisr*  In  the  second  case  the  qoes- 
tp  the  potaahiBty  of  dividing  a  palatinatr  amoi^  co-heirs 
die  point  perplexed  the  justices^  who  dedarcd 


Kale  Book,  piac  1213. 


§  2]  THE  COMES  PA  LA  TIT.  II 

that  they  never  beard  of  a  similar  case,  and  dedined  to  follow 
foreign  precedents.^  Bracton,  without  doubt,  bad  beard  of 
similar  or  apparently  similar  cases,  but  not  in  England,  and 
would  probably  have  been  ready  with  precedents  drawn  from 
that  foreign  law  with  which  he  was  familiar. 

On  the  whole,  then,  the  evidence  seems  to  point  to  the  con- 
clusions that  in  England  in  the  thirteenth  century  the  great 
franchises,  held  respectively  by  the  eaii  of  Chester  and  the 
Bishop  of  Durham,  had  grown  into  such  importance,  sndi 
superioritA'  over  the  other  franchises  of  the  kingdom,  that  men 
were  at  a  loss  how  best  to  describe  them ;  that  since  the  dis- 
tinguishing traits  of  these  franchises  lay  in  the  exercise  of  local 
sovereignty,  in  a  kind  of  limited  royalty,  scholars  borrowed  from 
the  continent  the  convenient  adjective  palatinns,  which  was 
known  in  theory  to  imply  something  peculiarly  royal,  and  in 
practice  (on  the  Rhine  and  in  Champagne)  to  denote  ireiy  mnch 
the  same  sort  of  local  independence  that  they  were  .seeking  to 
describe;  and,  finally,  that  the  term,  being  fordgn  and  some- 
what pedantic,  was  used  but  sparingly.  If  this  be  true,  it  would 
naturally  follow  that  the  possessor  of  so  great  a  franchise  would 
very  soon  see  the  advantage  existing  for  him  in  the  vague  and 
almost  unlimited  possibilities  of  a  word  like  palatifius-  It  im- 
plied a  royalty  equal,  within  a  limited  area,  to  that  of  the  king ; 
and  in  a  time  when  the  borders  of  the  king's  royalty  were  be- 
ing constantly  and  rapidly  enlarged,  a  similar  process,  though 
on  a  much  smaller  scale,  might  be  carried  through  bj  a  fendataiy 
who  described  himself  as  palatinus. 

If,  then,  in  this  fashion  the  term  comes  palatii  was  by  sch<Jars 
imported  from  the  continent  to  meet  a  need  that  in  the  thirteenth 
century  had  arisen  in  England,  one  difficulty  is  disposed  of. 
Another  and  greater  one  arises  when  we  ask  oorsdves  by  idiat 
process  the  need  for  such  a  tenn  arose;  and  in  endeaiPorin|^ 
to  answer  this,  it  will  be  necessary  to  confine  oorsehes  to  the 
immediate  subject  of  this  study,  the  county  palatine  of  Dnriiam. 


^  Bracton^s  Note  Book,  pbc  1227, 1273.    In  the  second  case  it  was  saUJ^ 

**  casus  iste  pop  est  simiBs  raqlms  rMwimiti^^  mj^  n"Wrm  W^^  k*^  faoag 

in  Angiia,iiiKle  comitatosdBvidI  non  driict  cum  sftcSondtattts  Pakjs:"  Ibid^ 
p.  282.     a.  PoOoc±  and  Maidand,  i.  i86l 


12  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

§  3.    Origin   of  the   County   Palatine   of  Durham. 

The  origin  of  the  county  palatine  of  Durham  is  a  matter  of 
extreme  obscurity,  and  by  reason  of  the  lack  of  evidence  one 
that  will  probably  never  be  settled.  Three  views  on  this  ques- 
tion have  prevailed:  two  of  them  ascribe  the  erection  of  the 
county  palatine  to  the  deliberate  act  of  some  king  of  England, 
either  Alfred  or  William  the  Conqueror,  while  the  third  regards 
it  as  a  growth,  not  complete  until  the  thirteenth  century, 
although  based  on  a  survival  of  local  independence  in  the 
ancient  kingdom  of  Northumbria.  These  theories  will  be  stated 
in  order  and  in  a  somewhat  summary  fashion,  and  various 
reasons  for  rejecting  them  will  be  offered.  The  theory  advo- 
cated in  the  present  discussion  will  be  found  to  be,  to  a  certain 
degree,  an  amplification  of  the  last  of  these  three  views. 

The  oldest  and  the  most  generally  accepted  doctrine  is  that 
William  the  Conqueror,  as  a  matter  of  policy,  deliberately  created 
two  strong  local  authorities,  in  the  persons  of  the  earl  of  Chester 
and  the  Bishop  of  Durham,  to  act  as  buffers  against  the  invasions 
of  the  unconquered  Welsh  and  Scots.  They  were  invested  with 
an  unusual  measure  of  independence,  in  order  that  their  hands 
might  be  free  to  perform  the  duty  for  which  they  had  been  set  on 
the  marches.  They  were  compared  to  the  margraves  of  Charles 
the  Great,  who  were  for  the  same  reason  very  largely  exempted 
from  central  control.^  This  view  has  all  the  advantage  of  ex- 
treme simplicity  and  convenience,  and  it  found  unquestioned 
acceptance  until  the  middle  of  the  present  century.  For  a  final 
judgment  of  it  we  should  turn  naturally  to  Dr.  Stubbs,  but  it  is 
impossible  to  tell  how  he  stands  on  this  point.^     Historically, 

1  Selden,  Titles  of  Honor,  cap.  v,  §  8,  pp.  529-533;  Coke,  Fourth  Institute, 
cap.  xxxviii,  216;  N.  Bacon,  Discourse  on  the  Government  of  England,  cap. 
xxix,  73.  For  a  variation  of  this  theory,  crediting  Richard  I  with  the  erec- 
tion of  the  palatinate,  see  the  case  of  the  county  palatine  of  Wexford,  in 
Davies,  Reports  (ed.  1762),  9  Jac.  Trin.  159-164.  Richard  made  Bishop 
Pudsey  earl  of  Northumberland,  and  sold  to  him  the  district  of  Sadberg.  See 
Coldingham,  cap.  ix,  in  Scriptores  Tres,  14-15  ;  and  Ibid.,  App.  Nos.  xl-xlii. 

2  In  one  place  his  words  point  to  his  acceptance  of  the  view  that  the 
palatinate  was  founded  by  the  Conqueror  for  purposes  of  national  defence, 
but  this  inference  is  rendered  doubtful  by  a  subsequent  passage.  See  Stubbs, 
i.  308-309,  41 1-4 1 2. 


§3]  THE   COUNTY  PALATINE   OF  DURHAM.  13 

indeed,  the  theory  is  worthless.  There  is  not  a  vestige  of  evi- 
dence to  show  that  William  made  any  grant  of  palatine  privi- 
leges to  the  Bishop  of  Durham;  no  chronicler  mentions  the 
circumstance,  no  document  of  any  sort  records  it.  Further, 
there  is  proof  that  in  the  beginning  of  the  twelfth  century  a 
widely-different  view  was  held.  The  Durham  chronicler,  for 
example,  writing  in  the  first  quarter  of  the  twelfth  century, 
ascribes  the  origin  of  the  possessions  and  privileges  of  the  see 
(the  latter  known  collectively  as  the  "  leges  et  consuetudines 
Sancti  Cuthberti,"  for  there  is>-no  question  yet  of  a  palatinate 
so  called)  to  the  grants  made  to  S.  Cuthbert  on  his  elevation  to 
the  see  of  Lindisfarne  in  685  by  Egfrith,  king  of  Northumbria. 
These  grants  were  confirmed  and  largely  increased  by  the 
joint  action  of  Alfred  and  Guthred  the  Dane,  and  again  con- 
firmed by  the  Conqueror.^  Moreover,  the  Bishops,  when  their 
liberties  were  called  into  question,  never  pleaded  any  grant 
from  the  Conqueror,  but  almost  invariably  answered  that  they 
held  these  liberties  by  prescription.  This  first  theory,  then, 
must  be  altogether  rejected  as  not  proven,  and  not  even 
probable.2 

The  next  theory  to  be  considered  is  that  constructed  by  the 
late  Sir  Thomas  Duffus  Hardy,  the  learned  editor  of  Bishop 
Kellaw's  Register.  Hardy  first  states  that  he  has  been  unable 
to  discover  the  period  at  which  the  palatinate  of  Durham  was 
first  created,  or  to  learn  whether  it  was  founded  by  charter 
or  by  verbal  donation.  He  then  points  out  the  silence  of  all 
writers  with  respect  to  a  charter  or  other  deliberate  foundation, 
together  with  the  fact  that  the  Bishops  of  Durham  relied  on  the 
plea  of  prescription  for  their  liberties ;  and  he  reaches  the  con- 
clusion that  no  formal  creation  of  the  palatinate  by  charter  or 
deed  ever  took  place,  but  that  the  jurisdiction  grew  gradually 
from  a  small  beginning  under  the  protection  of  Oswald,  king 
of  Northumbria,   considerably   increased   by   later   sovereignSt 

1  Symeon  of  Durham,  i.  31,  69-71,  108. 

2  It  is  curious  to  see  how  it  persists  and  crops  up  in  otherwise  scholarly 
and  well-informed  works.  See,  for  example,  Jenks,  Law  and  Politics  in 
the  Middle  Ages,  172,  173;  Medley,  Constitutional  History  (2d  ed.),  331 ; 
Cobb,  Story  of  the  Palatines,  20  ff. 


14  THE   ORIGIN  OF  THE  PALATINATE,  [Ch.  I. 

who  as  late  as  the  Anglo-Norman  period  continued  to  make 
grants  of  land  and  privilege.^ 

This  exposition,  so  far  as  it  goes,  is  entirely  acceptable  ;  it 
does  not,  however,  go  much  beyond  the  statement  that  the 
palatinate  had  its  origin  before  the  Conquest  in  various  grants 
made  to  the  see  which  eventually  became  the  see  of  Durham. 
The  question  of  the  intention  of  the  grantors  is  left  open,  and 
in  dealing  with  this  point  Hardy  is  inconsistent.  The  authority 
for  these  grants  is  the  chronicle  of  Symeon,  which,  although 
written  in  the  early  twelfth  century,  is  based  on  Beda  and 
certain  Northumbrian  annals  which  have  since  disappeared.^ 
The  fact  of  the  grants  may  thus  well  be  received  as  authentic, 
though  the  wording  and  account  of  the  attendant  circumstances 
will  be  hesitatingly  accepted.  But  Symeon  wrote  at  a  time 
very  shortly  after  the  foundation  of  the  convent  to  which  he 
belonged,  and  the  convent  had  been  founded  and  endowed 
with  immunities  as  well  as  lands  by  the  Bishop  of  Durham. 
It  was  therefore  to  the  advantage  of  the  monks  to  exalt  and 
carry  back  to  a  remote  period  the  immunities  of  the  see,  which 
were  the  source  and  origin  of  their  own  immunities.  Here  then 
is  reason,  not  for  rejecting  the  possibility  that  kings  before  the 
Conquest  had  made  grants  of  immunity  or  regality  to  the  epis- 
copal successors  of  S.  Cuthbert,  but  for  rejecting  the  testimony 
of  Symeon  to  that  effect.^ 

Let  us  see  now  how  Hardy  deals  with  the  grants  recorded  by 
such  an  authority.  King  Oswald,  according  to  the  chronicler, 
made  an  ample  provision  for  the  newly-erected  see  of  Lindis- 
farne,  and  the  lands  thus  granted  are  enumerated,  but  there  is 
no  mention  of  any  grant  of  liberties.  Hardy  thinks  it  highly 
probable  that  the  king  conveyed  regalities  with  his  gift,  in 
order  to  enable  the  bishop  to  control  the  district  placed  in  his 
charge.*    That  is  to  say,  a  grant  of  regalities  is  assumed,^  and 

1  Registrum,  i.  Introd.  Ivi-lvii. 

2  Symeon,  i.  Introd.  xix. 

3  On  the  relations  of  the  Bishop  and  the  convent  in  this  matter,  see 
below,  §  17. 

*  Registrum,  i.  Introd.  lix;  cf.  Symeon,  i.  19. 

*  It  is  not  improbable  that  this  gift  was  accompanied  by  some  grant  of 
immunities ;  there  is  nothing  in  the  text  to  deny  this  supposition. 


§3]  THE   COUNTY  PALATINE  OF  DURHAM.  15 

then  accounted  for  by  a  motive  which  no  doubt  actuated  a 
fourteenth-century  king  of  England  in  dealing  with  a  border 
province/  but  which  can  only  by  an  anachronism  be  applied 
to  the  ruler  of  a  petty  state  in  the  seventh  century.  Clearly, 
Hardy  was  preoccupied  with  the  notion  that  the  liberties  of 
the  see  must  be  accounted  for  by  some  direct  royal  grant.  This 
appears  from  his  comment  on  the  grant  made  to  Bishop  Ethel- 
wold  by  King  Ceolwulf  toward  the  middle  of  the  eighth  century. 
Soon  after  this  grant  the  king  had  resigned  the  crown  to  enter 
the  church,  and  Hardy  regards  it  as  **  within  the  bounds  of 
probability,  that  on  this  occasion  he  conferred  on  the  see  royal 
privileges  and  rights  which  may  have  been  the  commencement 
of  the  jura  regalia  of  the  Palatinate."  ^  Again,  Guthred  and 
Alfred  are  described  as  having  jointly  endowed  the  see  with 
all  the  land  between  Tyne  and  Wear,  together  with 72/^2  regalia 
and  the  right  to  extend  these  privileges  to  all  land  in  future 
to  be  acquired  by  the  see.*  If  this  statement  might  be  taken 
literally,  —  though  for  reasons  already  advanced  it  is  impossible 
so  to  take  it,  —  it  would  no  doubt  mark  the  definite  beginning 
of  the  palatinate.  Hardy,  indeed,  virtually  commits  himself  to 
this  view.** 

The  inconsistency  of  all  this  reasoning  must  now  be  quite 
plain.  Hardy's  theory  begins  in  effect  with  the  proposition 
that  the  palatinate  was  not  created  but  that  it  grew,  and  then 
proceeds  to  the  statement  that  it  had  its  origin  in  the  grants  of 
several  early  English  kings,  as  recorded  in  a  chronicle.  In  order 
to  reconcile  these  statements  we  must  suppose  him  to  have  had 
in  mind,  when  writing  of  origins,  the  general  necessity  of  a 
creation  by  means  of  a  formal  grant  accompanied  by  a  charter, 
and  indeed  as  much  is  implied  in  the  words  by  which  he  denies 
the  existence  of  such  a  grant :  "  No  formal  creation  by  charter 
or  deed  ever  took  place."  But  this  remark  is  soon  forgotten,  for 
he  writes :  "  These  two  grants  of  Guthred  and  Alfred  were  un- 
doubtedly the  first  germ,  if  not  the  foundation  of  the  Palatinate 
of  Durham  (to  say  nothing  of  the  liberties  granted  to  Aidan  by 
King  Oswald,  or  of  those  which  King  Ceolwulf  may  have  given), 

1  See  below,  ch.  viii.  2  Registrum;  i.  Introd.  xxiii. 

8  Symeon,  i.  69-71.  '      ^  Registrum,  i.  Introd.  xxvi-xxvii,  Ix-lxi. 


l6  THE  ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

the  extent  of  which  was  increased  by  succeeding  sovereigns,  or 
by  encroachments  on  the  part  of  the  bishops  themselves."  ^  On 
the  next  page  he  is  accounting  for  the  lack  of  charters  recording 
a  grant  of  immunities,  which,  he  has  said,  were  never  formally 
created  by  charter  or  deed.^  Then  follows  an  exposition  of  the 
ease  with  which  a  charter  might  be  lost  or  destroyed,  and,  as 
an  alternative,  he  suggests  that  the  charter  might  have  been 
"orally  granted  in  the  Witenagemote."  Finally,  in  deaUng 
with  the  grants  of  Guthred  and  Alfred,  he  cites  certain  inscrip- 
tions under  statues  of  these  sovereigns  (which  formerly  stood 
in  the  choir  of  Durham  cathedral),  to  the  effect  that  they  had 
made  grants  of  land  and  regalities  to  the  see.  Statues  and  in- 
scriptions have  both  disappeared,  but  the  latter  have  been  pre- 
served in  an  unofficial  manuscript.  Inasmuch  as  the  cathedral 
was  begun  in  1093,  the  inscriptions  must  necessarily  have  been 
of  a  later  date,  and  hence  are  at  best  of  no  more  than  tradi- 
tional value.  To  sum  up,  then :  the  first  statement  of  Hardy's 
theory,  namely  that  the  palatinate  had  no  definite  origin  but 
was  the  outcome  of  a  slow  growth  begun  long  before  the 
Norman  Conquest,  may  be  unhesitatingly  accepted ;  in  his 
explanation  and  elaboration  of  this  proposition,  however,  he 
introduces  a  new  and  incongruous  suggestion,  to  the  effect 
that  the  palatinate  was  founded  by  the  act  of  Alfred  and 
Guthred,  a  view  which,  by  reason  of  a  lack  of  evidence,  must 
be  rejected. 

A  recent  and  most  ingenious  theory  of  the  origin  of  the 
palatinate  has  been  propounded  in  scholarly  fashion  by  Mr.  W. 
Page.  He  reviews  the  history  of  the  kingdom  of  Northumbria 
from  the  time  of  its  foundation  by  Ida  in  547,  until  the  earldom 
of  Northumberland  was  granted  to  Prince  Henry  of  Scotland  in 
1 1 39.  He  then  points  out  that  the  overlordship  of  Wessex  was 
not  acknowledged  in  Northumbria  until  894,  and  that,  by  an 
arrangement  between  Athelstan  and  Sihtric,  Northumbria  was 
allowed  practical  independence.  On  the  death  of  Sihtric, 
Athelstan  was  elected  king  of  Northumbria  by  the  local  witan, 
as  Mr.  Page  believes,  with  the  stipulation  that  the  union  of  the 
two  kingdoms  was  to  be  only  a  personal  one.     After  the  death  of 

2  Ibid.,  Ixiv-Ixv. 


§  3]  THE   COUNTY  PALATINE   OF  DURHAM.  ij 

Athelstan  two  local  noblemen  were  successively  elected  by  the 
witan,  but  the  efforts  of  Edred  of  Wessex  eventually  succeeded 
in  forcing  that  body,  in  946,  to  swear  fealty  to  him.  He  was, 
however,  three  times  deprived  of  the  Northumbrian  crown  by 
persons  chosen  by  the  witan,  which  eventually  restored  him  in 
954.  Osulf,  lord  of  Bamburgh,  was  then  made  earl  of  Northum- 
bria;  and  the  province,  sometimes  divided  into  two  parts,  was 
governed  with  extensive  local  independence  by  the  house  of 
Bamburgh  until  1055,  when  the  representative  of  that  line  was 
superseded  by  Tostig,  son  of  Godwin,  who  acted  as  an  indepen- 
dent sovereign,  making  laws  and  laying  heavy  taxes.  In  1066 
the  Northumbrian  thegns  revolted,  outlawed  Tostig,  and  chose 
in  his  place  Morkar;  and  this  act  was  countenanced  by  the 
king.  Under  Morkar,  Northumbria  was  divided  into  the  earl- 
doms of  York  and  Northumberland.  In  107 1  these  were  for- 
feited to  the  .crown.  Copsi  and  several  of  his  successors,  on 
whom  William  had  bestowed  the  earldom  of  Northumberland, 
were  murdered  by  their  subjects,  but  Waltheof,  of  the  old  local 
house  of  Bamburgh,  conspired  against  the  king,  and  was  by  his 
order  beheaded  in  1075.  The  earldom  then  passed  to  Walcher, 
the  first  Norman  Bishop  of  Durham,  who  was  murdered  in  1080. 
Two  more  earls  were  appointed,  and  then  the  county  remained 
in  the  king's  hand  until  it  was  conferred  on  Prince  Henry  of 
Scotland  in  1139. 

From  these  facts  Mr.  Page  reaches  a  number  of  interesting 
conclusions.  He  believes  that  there  was  an  active  local  witen- 
agemot  in  Northumbria  as  late  as  948,  and  that  its  existence 
subsequent  to  that  date  may  be  discerned  in  the  election  of  most 
of  the  earls,  but  particularly  in  the  deposition  of  Tostig  and  the 
elevation  of  Morkar.  The  earls  of  Northumbria,  he  holds, 
enjoyed  an  unusual  measure  of  local  independence,  as  appears 
from  the  accounts  of  Tostig's  legislation.  From  the  fact  that 
the  surviving  body  of  Anglo-Saxon  diplomata  comprises  but  one 
writ  to  the  earls  of  Northumbria  (and  that  of  an  ecclesiastical 
nature),  he  concludes  that  just  before  the  Conquest  the  king's 
writ  did  not  run  in  Northumbria,  and  probably  not  at  an  earlier 
period.  For  this  conclusion  Mr.  Page  relies  largely  on  the 
authority  of  Freeman's  opinion.     In  the  fact  that   before   the 


1 8  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

Conquest  many  kings  described  themselves  as  rulers  of  the  West 
Saxons  and  Northumbrians,  he  sees  proof  that  no  more  than 
the  accident  of  a  common  sovereign  united  the  two  kingdoms. 
From  a  passage  in  Domesday  Book  relating  to  York,  to  the 
effect  that  "  in  the  time  of  King  Edward  the  earl  had  nothing  at 
all  in  demesne  manors,  neither  had  the  king  in  the  manors  of 
the  earl,  except  that  which  belongs  to  the  court  christian, 
which  belongs  to  the  archbishop,"  he  concludes  that  the  earl 
took  nothing  in  the  king's  manors,  but  in  his  own  took  all 
returns,  such  as  customary  payments,  escheats,  and  the  like. 
This  circumstance,  in  connection  with  the  fact  that  up  to  the 
close  of  the  twelfth  century  the  earldom  of  Northumberland 
does  not  figure  in  the  pipe  rolls  except  when  it  was  in  the 
king's  hand,  leads  to  the  conclusion  that  the  earl  took  all  the 
returns  of  the  county  and  the  king  none,  and  that  therefore 
the  earl  must  have  had  his  own  staff  of  officers  and  must  have 
possessed  jura  regalia  over  all  his  lands.  These  would  have 
included,  besides  the  present  counties  of  Northumberland,  Dur- 
ham, and  Lancaster,  the  districts  of  Richmond,  Holderness, 
Hexham,  Tynemouth,  and  Tynedale,  none  of  which  appear  in 
Domesday  Book,  and  all  of  which  afterward  became  franchises 
of  greater  or  less  importance. 

Having  reached  this  point  in  his  argument,  Mr.  Page  under- 
takes to  show  that  "  Durham  formed  an  integral  part  of  the 
earldom  of  Northumbria  before  the  time  of  Bishop  Walcher; 
and  afterwards,  down  to  the  episcopate  of  Bishop  Anthony  Bee, 
it  was  only  considered  a  liberty  within  the  county  of  Northum- 
berland." In  support  of  this  theory  he  points  out  that  there  is 
no  evidence  in  the  chronicles  that  before  the  Conquest  the 
Bishops  exercised  regalities,  although  they  enjoyed  great  liber- 
ties. Further,  he  contends  that  the  earls  appointed  the  Bishops, 
citing  two  cases  in  the  eleventh  century  and  one  in  the  twelfth. 
From  the  facts  that  it  was  the  earl  and  not  the  Bishop  who 
repelled  the  Scots  when  they  were  besieging  Durham  in  1006, 
and  that,  when  one  of  the  earls  appointed  by  the  Conqueror  was 
murdered  at  Durham,  the  Bishop  fled  with  the  body  of  S.  Cuth- 
bert,  he  infers  that  Durham  must  have  been  included  in  the 
county   of   Northumberland.     Finally,  he  points  out  that  the 


§3]  THE  COUNTY  PALATINE  OF  DURHAM,  19 

wapentake  of  Sadberg,  which  lies  between  Tyne  and  Tees,  was 
not  acquired  by  the  see  until  the  end  of  the  twelfth  century,  and 
that  in  the  quo  warranto  proceedings  of  1293  the  liberties  of 
the  bishopric  are  described  as  lying  within  the  precincts  of  the 
county  of  Northumberland.  Then  comes  his  general  conclu- 
sion :  "  I  would  suggest  that  the  palatine  rights  enjoyed  by  the 
bishops  of  Durham  were  inherited  from  the  earls  of  Northum- 
bria,  and  did  not  belong  separately  to  the  Bishops  previous  to 
the  time  of  Bishop  Walcher."  ^ 

Mr.  Page  has  reared  an  elaborate  structure  of  theory  on  what 
may  upon  critical  examination  prove  to  be  a  slight  or  even  in- 
sufficient basis  of  fact.  His  contention  that  before  the  Conquest 
the  earls  of  Northumbria  enjoyed  practical  independence,  rests 
(i)  on  the  story  in  the  chronicle  that  Tostig  made  laws,  and 
(2)  on  the  absence  of  writs  addressed  to  the  earls  of  Northum- 
bria before  the  Conquest.  But  by  Mr.  Page's  hypothesis  the  in- 
dependence of  the  earldom  was  secured  by  the  witan  equally  with 
the  earl,  and  the  witan  repudiated  the  only  earl  who  ventured 
on  independent  legislation ;  and  the  writ  is  a  late  and  probably 
a  Norman  device,  and  no  great  number  of  them  existed  before 
the  eleventh  century.^  It  is  hazardous,  moreover,  to  rely  on 
any  lacunae  in  a  collection  of  records  like  the  Anglo-Saxon 
diplomata,  which  can  of  necessity  represent  but  a  very  small 
proportion  of  the  original  mass.  Furthermore,  the  argument 
for  the  earl's  immunity  in  the  twelfth  century,  as  based  on  the 
absence  of  Northumberland  from  the  pipe  rolls,  does  not  meet 
the  difficulty  involved  in  the  existence  in  that  century  of  a  royal 
sheriff  for  Northumberland .^ 

^  W.  Page,  Some  Remarks  on  the  Northumbrian  Palatinates  and  Regali- 
ties, in  Archaeologia,  li.  143-154.  The  importance  of  the  connection  between 
the  kingdom  of  Northumbria  and  the  later  palatinate  was  recognized  in  the 
last  century  by  Plutchinson  (Durham,  i.  420). 

2  On  this  subject  see  Maitland,  Domesday  Book  and  Beyond,  262-265. 
The  weight  of  Freeman's  authority,  upon  which  Mr.  Page  relies  for  this 
point,  is  of  course  very  much  diminished  by  the  recent  contributions  of  Mr. 
Round  and  Professor  Maitland. 

^  See  List  of  Sheriffs,  Record  Office  Lists  and  Indexes,  No.  ix;  North- 
umberland Historical  Committee,  History  of  Northumberland,  i.  25,  ii. 
10-12. 


20  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

With  regard  to  Mr.  Page's  contention  that  Durham  was  an 
integral  part  of  the  earldom  of  Northumberland,  his  evidence  ap- 
pears insufficient.  He  holds,  as  has  been  noticed,  that  the  earls 
appointed  the  Bishops,  and  refers  to  two  instances  in  the  eleventh 
century;  but  one  of  these  was  a  reinstatement,  not  an  appoint- 
ment. He  also  cites  the  case  of  the  intrusion  in  the  twelfth 
century  of  Cumin,  who  actually  usurped  the  temporalities  of  the 
see  and  held  them  for  three  years ;  but  Cumin  was  the  creature 
of  the  king  of  Scotland ;  he  was  never  elected,  nor  did  he  have 
any  shadow  of  canonical  right.  Indeed,  the  whole  episode  was 
part  of  the  scheme  of  David  of  Scotland  to  aid  his  niece,  and 
incidentally  to  extend  his  boundary  southward.^  Again,  the  fact 
that  the  earl  of  Northumberland  defended  the  city  of  Durham 
against  the  invading  Scots  in  1006  is  not  sufficient  proof  that  Dur- 
ham was  part  of  his  county.  The  battle  of  the  Standard,  which 
was  fought  in  1 1 38  under  the  direction  of  the  archbishop  of  York, 
took  place  at  Northallerton,  a  place  which  though  locally  situated 
in  Yorkshire  was  actually  a  parcel  of  the  county  of  Durham ;  but 
no  one  questioned  its  relation  to  Durham  after  the  battle.  More- 
over, the  flight  of  Bishop  Ethelwin  after  the  murder  of  the  earl 
at  Durham  does  not  necessarily  imply,  as  Mr.  Page  would  have 
it,  that  the  murder  of  the  earl  in  his  own  county  would  intensify 
the  Conqueror's  vengeance.  Again,  the  fact  that  the  wapentake 
of  Sadberg  was  reckoned  a  parcel  of  the  county  of  Northumber- 
land until  the  close  of  the  twelfth  century  is  not  conclusive  evi- 
dence that  the  whole  of  the  bishopric  was  so  reckoned;  for 
portions  of  the  county  of  Northumberland,  namely,  the  districts 
of  Bedlyngton,  Island,  and  Norhamshire,  were  parcels  of  the 
bishopric,  and  such  detached  portions  of  counties  were  not 
uncommon  throughout  England.  The  fact  that  in  the  quo 
warranto  proceedings  of  1293  the  bishopric  was  reported  as 
"  within  the  precincts  of  the  county  of  Northumberland,"  does 
not  show  that  it  was  part  of  that  county.  It  would,  indeed, 
have  been  difficult  to  describe  it  in  any  other  way ;  for  although, 
as  will  appear  in  succeeding  chapters,  the  bishopric  at  this  time 

^  Symeon,  i.  146-161 ;  Laurentius  Dunelmensis,  Dialog!  (Surtees  Soc). 
In  the  introduction  to  the  latter  work  the  editor,  Canon  Raine,  gives  an  inter- 
esting account  of  the  whole  affair. 


§3]  THE   COUNTY  PALATINE   OF  DURHAM.  2 1 

had  a  complete  governmental  machinery,  the  lack  of  organic 
connection  with  the  central  institutions  of  the  kingdom  pre- 
vented it  from  being  technically  a  county.  Mr.  Page's  case  is  not 
proven,  because  in  the  present  state  of  information  the  point 
is  not  susceptible  of  proof.  We  must  have  recourse,  then,  to 
hypothesis  ;  and  against  Mr.  Page's  use  of  this  method  it  may 
fairly  be  objected  that  he  has  obtained  more  specific  and  elaborate 
results  than  his  data  permit.  His  arguments,  on  the  other  hand, 
are  scholarly,  and  his  theory  is  much  more  reasonable  than  any 
other  that  has  been  offered;  therefore  it  should  not  be  lightly 
rejected,  or  even  rejected  at  all  unless  the  difficulty  can  be  over- 
come in  a  simpler  fashion. 

There  can  be  no  doubt  that  between  635  and  1066,  from  the 
founding  of  the  see  to  the  Norman  Conquest,  the  bishopric  had 
a  very  rich  endowment  of  land.  Apart  from  the  testimony  of 
the  chroniclers  we  know  that  soon  after  the  Conquest  the 
Bishop  founded  and  endowed  a  convent  at  Durham  without  par- 
ticularly impairing  his  own  resources,  although  he  had  received 
no  grant  of  any  consequence  since  the  Conquest.^  Again,  in 
1 1 30,  although  no  important  recent  grants  had  been  made,  the 
see  had  an  annual  value  of  between  six  and  eight  hundred 
pounds.^  Without  insisting,  then,  upon  the  date  or  details  of 
any  grant,  —  although  the  bare  fact  that  Alfred  and  Guthred 
made  gifts  to  the  see  may  be  easily  accepted,  —  it  is  clear 
enough  that  before  the  Conquest  the  church  of  S.  Cuthbert 
was  a  great  landed  proprietor. 

This  admission  will  imply  certain  consequences.  Seignorial 
jurisdiction,  we  are  told,  is  very  closely  connected  at  its  root  with 
ecclesiastical  jurisdiction ;  ^  and  again,  "  a  royal  grant  of  land  in 
the  ninth  and  tenth  centuries  generally  included,  and  this  as  a 
matter  of  *  common  form,'  a  grant  of  jurisdiction."  ^     Finally,  it 

1  It  is  probable  that  before  the  foundation  of  the  Benedictine  convent  the 
congregation  of  S.  Cuthbert,  that  is,  the  Bishop  and  the  canons-regular,  held 
all  lands  in  common ;  hence  the  endowment  of  a  new  convent  was  in  the 
nature  of  a  separation  or  division.  See  Feodarium  Prioratus  Dunelmensis 
(Surtees  Soc,  ed.  Greenwell),  Introd.  10  £f, 

2  See  below,  §  37. 

8  Maitland,  Domesday  Book  and  Beyond,  279.  ^  Ibid.,  282. 


22  THE   ORIGIN  OF  THE  PALATINATE,  [Ch.  I. 

is  known  that  foremost  among  the  great  immunists  of  the  Anglo- 
Saxon  period  were  the  cathedral  churches.^  The  men  of  a  church 
who  were  removed  from  secular  justice  and  placed  in  all  things 
under  the  jurisdiction  of  that  church  were  known  as  homines 
Dei ;'^  Iwinines  sancti  would  be  an  equivalent  phrase,  particu- 
larly if  used  in  connection  with  the  church  of  Durham,  where 
the  presence  of  so  important  a  relic  as  the  incorruptible  body  of 
S.  Cuthbert  emphasized,  in  the  expressions  terra  or  patrimonia 
sancti  Ctithbertiy  the  personal  proprietorship  of  the  saint  in  the 
lands  of  the  church.^  Now,  between  the  twelfth  and  fourteenth 
centuries  the  words  "  haliwerfolc  "  and  "  haliwersocn  "  occur  fre- 
quently in  connection  with  the  bishopric  of  Durham.  This  word 
should  probably  be  derived  from  the  Anglo-Saxon  "  halig,"  holy, 
and  *'  war  "  or  **  wer,"  man  ;  *  in  this  case  it  would  pass  into  Latin 
as  homines  sajtcti,  or  populus  sancti,  phrases  which  actually  occur.^ 
The  word  "  haliwerfolc  "  is  in  use  in  Latin  documents  in  the  be- 
ginning of  the  twelfth  century,  and  continues  to  be  of  common 
occurrence  until  the  middle  of  the  following  century.  In  every 
case  it  is  used  in  a  territorial  sense  to  describe  the  bishopric  of 
Durham,  just  as  the  names  Norfolk  and  Suffolk  described  other 
English  counties.^  After  the  middle  of  the  thirteenth  century  the 
word  disappears,  but  it  is  revived  some  hundred  years  later  by  the 
local  historian,  who  describes  it  as  referring  to  a  special  tenure  by 
the  service  of  defending  the  body  of  S.  Cuthbert.  This  is  almost 
certainly  a  bit  of  popular  etymology ;  at  all  events,  an  isolated 
case  of  this  sort,  in  which  the  question  at  issue  was  purely  feu- 
dal, can  have  little  influence  against  a  mass  of  evidence  pointing 
in  another  direction.  ''  Haliwerfolc  "  and  "  haliwersocn,"  then, 
are  used  early  in  the  twelfth  century,  —  that  is  to  say,  in  what 
are  practically  the  earliest  documents  referring  to  the  bishop- 
ric, —  to  indicate  the  territorial  soke  or  franchise  of  the  Bishop. 

1  Maitland,  Domesday  Book  and  Beyond,  87.  ^  Ibid.,  281. 

3  On  the  saints  as  persons  and  even  as  landholders,  see  Pollock  and  Mait- 
land, i.  481-489. 

*  See  Bosworth,  Anglo-Saxon  Dictionary,  s.  v.   "  Halig"  and  "Wer." 

^  Symeon,  i.  107;  Feodarium,  205  note;  Scriptores  Tres,  App.  No. 
cccxxxii. 

®  Probably  the  earliest  use  of  this  word  in  the  surviving  documents  is  in  a 
charter  purporting  to  have  been  issued  by  Bishop  William   I,  about  1093, 


§3]  THE    COUNTY  PALATINE    OF  DURHAM.  23 

From  the  analogy  of  the  words  Norfolk  and  Suffolk,  it  would 
seem  that  haliwerfolc  in  this  sense  was   the  district   occupied 

but  actually  forged  very  early  in  the  succeeding  century,  before  1125.  This 
is  one  of  the  foundation  charters  of  the  convent.  In  it  the  various  lands  and 
vills  forming  the  endowment  of  the  body  are  arranged  under  three  heads,  —  "  In 
Northumbria,"  "  In  Haliweresfolck,"  "  In  Eboracishire  "  (Feodarium,  Iv). 
Bishop  Geoffrey  Rufus  (1133-1140)  uses  the  word  in  the  same  way  :  "  G[al- 
fridus]  Dei  gratia  Dunelmensis  Episcopus  omnibus  hominibus  Sancti  Cuth- 
berti  et  suis  de  Haliwerefolc  et  de  Euerwicscire,  Francis  et  Anglis,  salutem" 
(Ibid.,  205,  and  see  also  140).  During  the  pontificate  of  Bishop  Pudsey 
the  word  was  frequently  used;  a  bulh  of  Pope  Alexander  III  is  addressed 
"  Omnibus  sacerdotibus  et  personis  de  Haliwerefolk  "  (Scriptores  Tres,  App. 
No.  xxxvi).  In  a  like  sense  it  was  used  in  official  documents  by  the  king,  and 
the  earl  of  Northumberland,  and  by  the  Bishop  in  his  charters  (see  Feoda- 
rium, 152,  153,  163,  172;  Liber  Rubeus  de  Scaccario,  iii.  1071 ;  Registrum, 
iii.  39-41;  Boldon  Book,  App.  xliv).  The  territorial  sense  of  the  word  ap- 
pears even  more  clearly  in  two  private  charters  of  this  period.  In  one  a  cer- 
tain Roger  grants  land  in  Silkesworth  to  be  held  "  sicut  aliquis  tenet  melius 
et  liberius  de  aliquo  barone  in  Hahweresfolc  ;  "  in  the  other,  his  wife  grants 
land  in  the  same  vill  to  be  held  "sicut  aHquis  melius  et  liberius  tenet  in 
episcopatu  Dunelm.  de  aliquo  barone"  (Feodarium,  123-124).  An  histor- 
ical writer  of  the  period  uses  haliwerfolc  to  signify  the  county  or  bishopric 
(Reginaldus  Dunelmensis,  Libellus,  Surtees  Soc,  cap.  xc,  194).  In  the 
early  thirteenth  century  the  word  is  used  in  a  territorial  sense  and  is  corre- 
lated with]  the  names  of  other  counties  in  royal  and  official  documents  (see 
Rot.  Chart.,  5  John,  120  a,  and  10  John,  182  a;  Rot.  Lit.  Claus.,  9  John,  i. 
90  a,  5  Hen.  Ill,  i.  446  a,  and  7  Hen.  Ill,  i.  569  b ;  Pipe  Roll,  13  John, 
in  Boldon  Book,  App.  xv).  The  witnesses  who  testified  in  the  dispute  be- 
tween the  Bishop  and  the  prior  in  1228  used  haliwerfolc  to  signify  the  fran- 
chised  territory  between  Tyne  and  Tees  (see  Attestaciones  Testium,  in 
Feodarium,  230,  235,  237,  238,  240,  297).  The  latest  employment  of  the 
word  in  this  sense  is  in  an  undated  charter  of  Henry  III,  preserved  in  a 
fifteenth  century  inspeximus  (Rot.  Pat.,  11  Hen.  VI,  pt.  ii.  m.  21),  and  im- 
perfectly printed  in  Rot.  Pari.,  9  Edw.  II,  i.  362.  After  this  it  does  not 
occur  again  until  it  is  misused  by  Graystanes,  the  historian,  in  the  fourteenth 
century.  This  writer  reports  that  in  the  time  of  Bishop  Bek  the  men  of 
the  bishopric,  having  been  twice  compelled  to  go  under  arms  to  Scotland 
and  punished  when  they  returned  without  leave,  rose  against  their  Bishop. 
This  action  they  justified,  "  dicentes  se  esse  Haliwerfolk  et  terras  suas  tenere 
ad  defensionem  corporis  sancti  Cuthberti  nee  debere  se  exire  terminos  epis- 
copatus  .  .  .  pro  rege  vel  episcopo  "  (Graystanes,  cap.  xxiii,  in  Scriptores 
Tres,  76).  This  is  the  locus  classicus  upon  which  all  definitions  of  haliwer- 
folc, as  a  tenure  or  status,  depend.  All  writers  therefore  who  disregard  the 
earlier  use  of  the  word  and  the  special  circumstances  of  its  employment 


24  THE   ORIGIN  OF  THE  PALA  TINA  TE.  [Ch.  I. 

by  the  tenants  of  S.  Cuthbert.  In  a  document  late  in  form,  but 
deriving  its  substance  from  a  period  earlier  than  the  Conquest, 
it  is  recorded  that  every  year  at  the  feast  of  S.  Cuthbert  "  omnes 
Barones  scilicet  Teines  et  Dreinges  aliique  probi  homines  sub 
Sancto  praedicto  terram  tenentes  Dunelmum  conveniant."  ^ 
Again,  with  regard  to  the  flight  of  the  monks  with  S.  Cuth- 
bert's  body  on  the  approach  of  the  Danes,  the  chronicler  writes : 
**  Hoc  populus  ipsius  [S.  Cuthbert]  postquam  audivit,  domibus 
cum  tota  supellectili  relictis,  cum  uxoribus  et  parvulis  continue 
subsequitur;  "^  and  the  evidence  of  the  monkish  writer  in  re- 
cording a  fact  that  could  have  no  relation  to  the  immediate 
interest  of  his  convent  is  not  open  to  the  objection  that  was 
brought  against  it  in  connection  with  grants  of  privilege  to 
the  see.^ 

here,  explain  it  as  meaning  those  who  held  land  in  return  for  the  holy  work 
of  defending  S.  Cuthbert's  body  in  lieu  of  all  other  service.  Etymologically 
the  word  is  derived  from  "  holy-work-folk,"  a  form  which  seldom  or  never 
occurs  (see  Hutchinson,  Durham,  i.  239 ;  Surtees,  Durham,  i.  pp.  xxxii- 
xxxiii ;  Boldon  Book,  Glossary,  s.  v.  "  Haliwerfolc ; "  Registrum,  iii. 
Introd.  liv-lxi  ;  Brockett,  Glossary  of  North  Country  Words,  i.  270,  ii. 
208-209 ;  Dinsdale,  Glossary  of  Words  used  in  Teesdale,  s.  v.  "  Wark- 
folk").  This  easy  definition,  however,  will  not  tally  with  the  facts,  for  the 
rights  upon  which  the  Bishop's  tenants  based  their  refusal  to  serve  outside 
the  bishopric  are  feudal,  and  therefore  of  later  date  in  England  than  the 
word  haliwerfolc.  The  fact  that  the  word  when  used  by  Graystanes  had 
already  been  obsolete  for  a  century  puts  the  student  on  his  guard  against 
popular  etymology.  Again,  the  suggestion  that  some  tradition  of  a  time 
when  haliwerfolc  meant  the  tenants  of  the  saint  was  still  in  existence,  may 
be  met  by  the  facts  that  there  is  no  reason  to  suppose  that  the  tenants  of  the 
saint  ever  enjoyed  any  special  privilege  as  between  lord  and  tenant,  and  that 
all  tenures  in  the  palatinate  in  the  thirteenth  and  fourteenth  centuries  were 
purely  feudal.  Sufficient  proof  of  the  latter  statement  will  be  found  below 
in  chapters  ii  and  vi. 

1  Scriptores  Tres,  App.  No.  cccxxxii ;  see  also  below,  p.  108. 

2  Symeon,i.  235.  This  is  from  the  Auctarium  de  Miraculis  ;  the  Historia 
Ecclesiae  (Ibid.,  i.  65)  is  more  brief.  Cf.  Metrical  Life  of  S.  Cuthbert  (Sur- 
tees Soc),  line  4608  £f.,  especially 

"...  Yat  pople  propirly 
Yat  duelt  in  contre  cuthbert  by, 
his  awen  pople  was  calde." 
This  is  a  fifteenth  century  reading  of  the  Latin  text. 
^  Above,  p.  14. 


§3]  THE   COUNTY  PALATINE   OF  DURHAM.  25 

It  seems  reasonable  to  infer  from  these  facts  that  before  the 
Conquest  there  was  a  body  of  men  holding  land  under  the  church 
of  S.  Cuthbert  and  known  in  the  vernacular  as  men  of  the  saint ; 
and  that  at  some  period  earlier  than  the  twelfth  century  the 
complex  of  these  holdings  was  so  intense  and  exclusive  within  a 
certain  district  that,  as  had  been  the  case  in  Norfolk  and  Suffolk, 
the  collective  name  of  the  inhabitants  was  transferred  to  the  dis- 
trict. If  this  be  true,  we  have  before  us  a  great  ecclesiastical 
franchise  or  immunity,  and  that  is  precisely  what,  from  antece- 
dent probability,  we  should  expect  the  church  of  Durham  to 
be.  This  view  involves  no  suggestion  of  special  privileges  by 
which  Durham  may  have  been  set  apart  from  the  other  cathe- 
dral churches  of  England,  for  they  also  were  great  immunists/ 
Thus  far,  it  will  be  observed,  we  have  reached  no  conclusion  in- 
consistent with  Mr.  Page's  theory  ;  for,  if  the  local  independence 
of  the  Northumbrian  kingdom  survived,  then  the  Bishop  of  Dur- 
ham was  an  immunist  as  against  the  earl  of  Northumberland 
instead  of  as  against  the  king  of  England,  but  none  the  less 
an  immunist. 

Professor  Maitland  has  shown  that  at  the  root  of  these  great 
pre-Conquest  franchises  lay  the  question  of  revenue.  If  a  lord 
held  a  court  it  was  because  the  profits  of  jurisdiction  over  his 
men  belonged  to  him :  the  royal  officers  would  not  be  at  the 
pains  to  collect  profits  which  were  not  going  to  the  king.^  It 
would  have  been  equally  useless  for  the  king  to  take  an  account 
or  survey  of  a  district  from  which  no  profits  might  be  expected 
to  accrue  to  him,  and  therefore  the  bishopric  was  not  included 
in  Domesday  Book.  It  is  known  that  in  the  lands  of  S.  Cuth- 
bert in  Yorkshire  neither  the  king  nor  the  earl  had  any  **  cus- 
tom ; "  ^  and  it  is  scarcely  to  be  supposed  that  the  saint  should 
not  have  enjoyed  a  like  immunity  in  the  lands  of  his  own  see. 
It  is  not  suggested  that  Durham  was  omitted  from  the  survey 
because  it  was  a  palatinate,  but  because  the  king  had  nothing  to 
take  there.*     Nor  is  this  consideration  put  forward  as  the  only 

^  Maitland,  Domesday  Book  and  Beyond,  Z^j,  iiZ-i<^2.. 
2  Ibid.  ^  Domesday  Book,  i.  298  b. 

*  Chester,  which  is  generally  regarded  as  a  palatinate  at  this  time,  and 
which  at  least  enjoyed  very  high  privileges,  was  included  in  the  survey,  but 


26  THE   ORIGIN  OF  THE  PALATINATE,  [Ch.  I. 

reason  for  the  omission ;  the  king  might,  and  probably  would, 
have  found  it  expedient  to  survey  lands  which  might  at  any 
moment  come  into  his  hand  by  reason  of  vacancy  of  the  see,  if  it 
had  been  perfectly  easy  to  make  such  a  survey.  But  the  north- 
ern counties,  although  broken  by  the  Conqueror's  severity,  were 
by  no  means  incorporated  in  his  kingdom  in  the  sense,  for  ex- 
ample, in  which  Cambridgeshire  was  incorporated.  Their  con- 
sciousness of  local  independence  was  still  strong,  as  Mr.  Page 
has  shown,  and  this  feeling  was  no  doubt  intensified  by  the 
neighborhood  of  the  Scottish  lowlands,  where  Norman  feudal- 
ism, freed  from  the  repressive  hand  of  the  Conqueror,  was 
already  running  wild.^ 

The  old  theory,  that  Durham  was  omitted  from  the  survey 
because  it  was  utterly  devastated  as  a  consequence  of  the 
punishment  administered  by  the  Conqueror  after  the  murder  of 
Bishop  Walcher  in  1080,  must  not  be  passed  over.^  As  an  ex- 
planation of  the  omission  this  suggestion  will  not  answer,  for  if 
there  were  nothing  worth  surveying  in  the  county  in  1086,  why 
was  so  much  importance  attached  to  the  temporalities  of  the 
see,  and  notably  to  Durham  Castle,  in  the  course  of  Bishop 
William  I's  trial  in  1089  }^  And  how  could  the  see,  thus  ravaged, 
have  so  far  recovered  in  1093  as  to  permit  the  Bishop  to  under- 
take the  construction  of  what  to-day  remains  the  most  splen- 

the  king  had  interests  to  attend  to  there.  All  the  lands  of  the  bishop  were 
held  of  him,  and  he  himself  held  Roger  of  Poitou's  lands  between  the 
Ribble  and  the  Mersey,  which  were  included  in  the  Chester  survey.  See 
Ibid.,  262  b. 

^  See  Stubbs,  i.  625.  Brady  suggests  that  the  northern  counties  might 
have  been  in  the  hands  of  the  Scots  at  the  time  of  the  survey,  "  or  else  in 
such  condition  as  no  Commissioners  dare  adventure  into  them,  to  take  the 
Returns  of  Juries  and  make  the  Survey."  (Introduction  to  Old  English  His- 
tory, App.  17.)  Kelham  (Domesday  Book  Illustrated,  15)  accounts  for  the 
omission  of  Durham  on  the  ground  that  it  was  a  palatinate  by  the  grant  of 
Alfred;  and  Sir  Henry  Ellis  accepts  this  explanation  (Introduction  to  Domes- 
day Book,  xii). 

2  See  W.  de  Gray  Birch,  in  Domesday  Studies,  ii.  494,  495.  For  this 
theory  the  locus  classicus  in  the  texts  is  William  of  Malmesbury,  Gesta 
Pontificum,  271. 

8  See  the  tract,  "De  injusta  vexatione  Willelmi  episcopi  primi,"  in 
Symeon,  i.   170  £f . ;  and  cf.  Stubbs,  i.  498-499. 


§3]  THE   COUNTY  PALATINE   OF  DURHAM,  27 

did  ecclesiastical  fabric  in  England  ?  The  theory  must  be 
rejected,  but  the  fact  of  the  devastation  may,  by  creating  an  in- 
tensely hostile  feeling  against  the  king  and  his  officers,  well 
have  been  one  of  the  considerations  which  moved  William  to 
omit  Durham  from  the  survey. 

Thus  at  the  period  of  the  Conquest  the  bishopric  of  Durham 
was,  and  had  for  some  time  been,  a  great  franchise  or  immunity. 
Of  such  a  franchise  the  highest  authority  has  said  :  "  The  well 
endowed  immunist  of  S*.  Edward's  day  has  jurisdiction  as  high 
as  that  which  any  palatine  earl  of  after  ages  enjoyed.  No  crime 
except  possibly  some  direct  attack  upon  the  king's  person,  prop- 
erty or  retainers,  was  too  high  for  him.  It  is  the  reconstruction 
of  criminal  justice  in  Henry  II's  time,  the  new  learning  of 
felonies,  the  introduction  of  the  novel  and  royal  procedure  of  in- 
dictment, that  reduce  the  immunist's  powers  and  leave  him  with 
nothing  better  than  an  unintelligible  list  of  obsolete  words."  ^ 
The  point,  then,  at  which  we  must  seek  for  the  origin  of  the 
county  palatine  in  the  sense  in  which  that  word  was  used  in 
England,  is  the  reign  of  Henry  II.  We  are  to  conceive  of  a 
number  of  franchises  beginning  at  some  remote  period  before 
the  Conquest,  growing  rapidly,  particularly  during  the  reign  of 
the  Confessor,  surviving  the  Conquest,  and,  after  a  period  of 
royal  apathy  and  opportunity  for  feudalization,  reaching  in  the 
reign  of  Henry  II  a  crisis  so  severe  that  most  of  them  were 
swallowed  up,  curtailed,  or  otherwise  brought  into  harmony  with 
the  vigorous  central  government.  Those  that  survived  the  crisis 
continued  to  grow,  and  in  the  succeeding  century  came  to  be 
called  palatinates. 

The  details  of  the  process  by  which  the  bishopric  of  Durham 
contrived  to  weather  the  storm  are  circumstantially  examined  in 
a  later  chapter.^  It  is  enough  to  say  here  that  the  result  was 
due  very  largely  to  the  high  personal  ambition  of  Bishop  Hugh 
Pudsey,  who,  owing  to  his  long  pontificate  and  his  familiarity 
with  the  mechanism  of  Henry  II's  government,  had  very  excep- 
tional opportunities  for  accomplishing  his  end.  It  was  also  due 
in  some  degree  to  the  accident  of  a  curious  lawsuit  in  1 205-1 206, 
which  indirectly  had  the  effect  of  very  greatly  enlarging  the  com- 

^  Maitland,  Domesday  Book  and  Beyond,  283.  2  Below,  ch.  v. 


28  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

petence  of  the  episcopal  court,  and  of  eventually  developing  out 
of  it  a  judiciary  organized  on  the  royal  model.  The  crisis  cen- 
tred in  the  judiciary,  and  when  once  in  that  department  the  prin- 
ciple had  been  established,  —  as  it  was  in  the  first  quarter  of  the 
thirteenth  century,  —  that  the  institutions  of  the  bishopric  were 
sufficient  for  the  subjects  of  the  Bishop,  the  rest  followed  natu- 
rally. It  will  appear  in  succeeding  chapters  that  every  institution, 
taking  shape  gradually,  was  called  into  being  by  the  necessities 
of  the  Bishop's  subjects,  and  was  modelled,  naturally  enough, 
on  similar  institutions  in  the  kingdom. 

The  development  proceeded  under  the  pressure  of  two  con- 
stant forces,  —  the  necessities  or  the  convenience  of  the  people 
of  the  province,  and  the  desire  of  the  Bishops  to  increase  their 
revenue,  a  motive  which  led  them  to  insist  on  every  profitable 
attribute  of  royalty.  The  first  of  these  forces  is  illustrated  by 
the  development  of  the  palatine  judiciary,  and  the  second  by  the 
history  of  the  efforts  of  successive  Bishops  to  vindicate  their 
right  to  have  forfeitures  of  war  in  the  palatinate.^  To  the  pres- 
sure of  these  constant  forces  was  added  the  stimulus  of  an  oc- 
casional collision  with  the  central  government,  such  as  the  quo 
warranto  proceedings  of  1293,  which  caused  the  Bishop  to  for- 
mulate his  rights  and  privileges  as  broadly  as  possible.  Also 
the  very  use  of  the  term  "  palatinus,"  first  applied  to  the  Bishop 
in  1293,2  probably  had  its  effect;  for  in  the  beginning  of  the 
next  century,  and  often  afterward,  it  was  contended  in  the  royal 
courts  that  the  Bishop  was  as  king  in  Durham.^  Again,  the 
influence  of  the  Scottish  invasions  of  the  borders,  many  of 
which  the  Bishops  had  to  meet  and  repel  as  best  they  might, 
without  aid  or  advice  from  the  central  government,  produced  a 
considerable  measure  of  local  independence  in  financial  and 
military  affairs.* 

Finally,  as  a  factor  of  the  utmost  importance  in  the  develop- 
ment of  the  institution  from  1066  until  1272,  must  be  reckoned 
the  geographical  situation  of  the  bishopric.  This  affected  the 
political  relations  of  Durham  to  the  central  government,  as  well 

^  These  subjects  are  discussed  below  in  chapters  v  and  ii  respectively. 

2  Rot.  Pari.,  21  Edw,  I,  i.  102-105. 

*  See  below,  §  4.  *  See  below,  chs.  vii,  viii. 


§3]  THE   COUNTY  PALATINE   OF  DURHAM.  29 

as  the  development  of  feudalism  in  the  palatinate.  In  consider- 
ing the  first  of  these  relations,  the  existence  of  a  feeling  of  local 
or  Northumbrian  independence,  so  clearly  brought  out  by  Mr. 
Page,  becomes  of  great  importance.  Until  the  failure  of  the 
direct  line  in  Scotland  the  question  of  the  determination  of  the 
border  between  the  two  kingdoms  was  probably  much  more 
open  than  is  generally  supposed.  In  dealing  with  this  point  it 
must  be  borne  in  mind  that,  besides  the  consciousness  of  local 
independence  in  the  ancient  Northumbrian  kingdom,  there  was 
a  strong  affinity  to  Scotland.  Hace,  institutions,  and  dialect 
were  virtually  identical  in  the  Scottish  lowlands  and  the  north- 
ern counties  of  England.^  The  Conqueror  was  better  able  to 
ravage  than  to  govern  the  northern  portions  of  his  kingdom ; 
and  in  the  succeeding  century  the  Scottish  kings  made  a  delib- 
erate effort  to  add  Northumberland  and  even  Durham  to  their 
domain.2  In  the  rebellion  of  1171-1173  Bishop  Pudsey  in- 
trigued with  the  Scots.^  Henry  IPs  reorganization  of  the  cen- 
tral government  was  probably  the  first  close  bond  attaching  the 
northern  counties  to  the  rest  of  the  English  kingdom.  In  the 
thirteenth  century  the  border  counties  were  for  certain  pur- 
poses withdrawn  from  the  regular  administration  and  placed 
under  the  direction  of  the  wardens  of  the  marches,  who  adminis- 
tered march  law.  The  bearing  of  all  this  on  the  development 
of  the  palatinate  is  clear  enough :  the  Bishop  was  so  far  re- 
moved from  the  central  government  that  what  in  other  and 
nearer  counties  would  have  been  regarded  as  usurpation  and  as 
such  punished  or  checked,  was  in  Durham  allowed  to  pass  un- 
noticed. It  is  not  difficult  to  believe  that  such  complacence  was 
deliberate,  arising  from  an  understanding  on  the  part  of  the 
English  kings  of  the  situation  of  these  counties  in  regard  to 
Scotland. 

In  regard  to  feudal  relations,  we  know  that  the  Norman  ad- 
venturers who  settled  between  Tweed  and  Forth  developed  a 
feudalism  far  more  complete  than  any  that  ever  appeared  in 
England,  and  that  many  of  these  barons  held  land  on  both  sides 

1  This  point  is  clearly  developed  in  Stubbs,  i.  623-625,  and  Pollock  and 
Maitland,  i.  200-202. 

2  Stubbs,  i.  623-625 ;  below,  p.  37.  «  See  below,  §  5. 


30  THE   ORIGIN  OF  THE  PALATINATE.  [Ch.  I. 

of  the  Tweed,  as,  for  example,  the  families  of  Bruce  and  Balliol 
both  of  which  held  large  estates  of  the  Bishop  of  Durham.^ 
These  circumstances  can  not  have  failed  to  exert  their  influence 
on  the  feudal  pretensions  of  the  Bishops  of  Durham,  whose  posi- 
tion as  king  in  the  feudal  scheme  of  the  palatinate  formed  an 
important  part  of  their  royalty .^ 

The  theory  here  advanced  is  not  inconsistent  with  the  one 
constructed  by  Mr.  Page,  though  it  gives,  it  is  believed,  a  some- 
what broader  view  of  the  question.  Mr.  Page  suggests  a  single 
cause  for  the  origin  of  the  palatinate,  namely,  the  survival  of  the 
local  independence  of  the  Northumbrian  kingdom.  Unquestion- 
ably this  circumstance  had  its  effect,  but  there  were  other  causes 
as  well.  Probably  Mr.  Page's  most  valuable  contribution  lies 
in  the  fact  that  he  placed  the  origin  of  the  palatinate  this  side  of 
the  Norman  Conquest.  But  by  origin,  in  this  context,  must  be 
understood  the  differentiation  of  the  liberty  of  the  Bishop  of 
Durham  from  the  other  great  franchises  of  England,  and  the 
beginning  of  those  attributes  which  made  it  palatine  in  the  later 
and  English  sense  of  the  word. 

1  Stubbs,  i.  623-625 ;  Pollock  and  Maitland,  i.  200-202 ;  below,  §  4. 

2  See  below,  §  4. 


CHAPTER   II. 

THE    BISHOP   AS    LORD    PALATINE. 
§  4.   General  Nature  of  the  Bishop's  Regality. 

From  the  thirteenth  century  onward  the  Bishops  of  Durham 
were  commonly  reported  to  have,  within  their  bishopric,  what- 
ever rights  and  privileges  the  king  enjoyed  in  his  kingdom. 
*'  Quicquid  rex  habet  extra  episcopus  habet  intra,"  ran  the 
maxim.i  jn  Durham,  said  a  lawyer  of  the  fourteenth  century, 
the  Bishop  may  do  as  he  will,  "  for  he  is  as  king  there."  ^  The 
sovereignty  was  by  no  means  stationary,  but  like  all  institutions 
it  waxed  and  waned,  showing  its  richest  development  between 
the  years  1300  and  1400.  To  this  century,  therefore,  much 
attention  will  be  directed,  for,  without  a  notion  of  the  complete 
structure,  growth  and  degeneration  would  be  equally  obscure. 

For  the  purposes  of  this  study  it  is  convenient  to  consider  the 
attributes  of  the  Bishop's  regality  under  three  categories,  namely, 
powers  in  imperioy  m  dominion  and  in  jurisdictione?  This  clas- 
sification, the  expression  of  a  mode  of  thought  quite  foreign  lo 
the  institution  under  examination,  and  therefore  in  application 
to  it  highly  artificial,  has  in  compensation  the  great  advantage 
of  clearness. 

§  5.    The  Bishop's  Regality  in  Imperio. 

First  the  Bishop  is  to  be  considered  as  the  head  of  the  civil 
government  of  the  palatinate.  In  this  capacity  he  had  the  ap- 
pointment of  all  those  civil  officers  whose  duties  and  functions 

^  Surtees,  Durham,  i,  p.  xvi. 

2  Year  Book  14  Edw.  Ill,  Mich.  142-144.  See  also  an  earlier  case, 
"  [episcopus]  infra  eandem  libertatem  loco  ipsius  regis  "  [est] :  Abbrev. 
Plac,  257  a,  33  Edw.  I. 

^  See  Sir  James  Whitelocke,  Reading  on  21  Hen.  VI 11,  cap.  xiii,  printed 
in  The  Practice  of  the  Court  of  Chancery  of  Durham,  1-7. 


32  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

will  be  dealt  with  elsewhere.^  It  was  admitted  that  he  of  his 
right  employed  "  such  officers  as  the  kings  of  England  had  reg- 
ularly used,  or  have  appointed  to  meet  special  emergencies,  or 
carry  out  the  provisions  of  an  act  of  parliament."  ^  The  Bishop 
had  also  the  duty  of  maintaining  the  peace  in  his  province, 
where  it  was  correct  to  speak  of  the  Bishop's,  not  the  king's, 
peace.  This  practice  indeed  was  not  uncommon  in  other  parts 
of  England,  for  many  lords  of  great  franchises  professed  to 
maintain  their  own  peace.^  The  cases,  however,  are  not  quite 
parallel,  for  no  other  franchise  in  England  was  so  effectually 
exclusive  of  the  king's  jurisdiction  as  was  the  palatinate.  '^  The 
king,"  it  was  said,  "  can  not  by  his  writ  have  jurisdiction  where 
he  can  not  try ;  "  *  clearly,  then,  the  king's  peace  could  not  ex- 
tend over  a  district  where  he  had  no  regular  means  of  maintain- 
ing it.  This  is  of  course  a  view  of  the  case  that  the  king  and 
the  royal  lawyers  would  not  have  admitted ;  indeed,  in  a  royal 
writ  addressed  to  Bishop  Kellaw  in  13 14,  the  Bishop's  at- 
tention is  directed  to  certain  trespasses  committed  "in  pacis 
nostrae,  quam  in  libertate  praedicta  ad  manutenendum  et  custo- 
diendum  habetis,  laesionem  ; "  and  he  is  warned  to  take  care  that 
nothing  be  undertaken  ''per  quod  pax  nostra  perturbari  .  .  . 
valeat."  ^  The  Bishop,  on  the  other  hand,  frequently  uses  the 
phrase  "  pax  nostra"  ;  all  episcopal  pardons  contain  a  clause  re- 
lieving the  beneficiary  from  the  "  secta  pacis  nostrae  quae  ad 
nos  pertinet,"  for  murder,  robbery,  or  whatever  offence  may  be 
in  question.^  Again,  the  frequently  recurring  commissions  for 
conservators,  and  later  justices,  of  the  peace  show  that  offences 
were  committed  against  the  peace  of  the  Bishop,  and  that 
the  tribunals  punishing  them  took  their  sanction  from  himJ 
The  reconciliation  of  these  divergent  facts  and  statements  is  to 

1  Below,  ch.  iii.  2  Rot.  Pari.,  11-12  Hen.  VI,  iv.  427  ff. 

3  Blackstone,  Commentaries,  i.  117,  iv.  431. 

4  Year  Book  17  Edw.  Ill,  Trin.  36  a. 
^  Registrum,  ii.  1017-1018. 

*  Rot.  i.  Hatfield,  ann.  4,  m.  i  dorse,  curs.  30,  and  ann.  2,  m.  2  dorse ; 
Rot.  ii.  Hatfield,  ann.  34,  m.  11,  curs.  31 ;  Rot.  i.  Booth,  ann.  5,  m.  10,  curs. 
48  (all  these  are  MSS.  in  the  Record  Office;  see  below,  App.  iii.);  Regis- 
trum, iii.  346. 

'  On  the  peace  commission  see  below,  §  19. 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO,  33 

be  found  in  the  theories  of  the  origin  of  the  palatinate,  held  re- 
spectively by  the  king  and  the  Bishop.  If,  as  the  royal  lawyers 
contended,  the  palatinate  existed  by  grant  from  the  crown,i  then, 
to  whomsoever  its  maintenance  was  confided,  the  peace  itself 
must  ultimately  be  the  king's  peace.  If,  on  the  other  hand,  the 
palatinate  enjoyed  its  liberties  by  prescription,  a  doctrine  fre- 
quently allowed  by  the  courts,^  then  the  Bishop  s  peace  was  a 
thing  apart  from  the  king's  peace.  Whichever  theory  was  cor- 
rect, the  fact  remains  that  within  the  palatinate  the  peace  was 
styled  the  Bishop's  peace,  and  offenders  against  it  were  tried  in 
the  Bishop's  court  and  punished  by  his  officers.^  The  whole 
question  was  ultimately  settled  by  an  act  of  parliament  in  1536, 
which  provided  that  in  future  the  king's  peace  should  be  deemed 
to  extend  over  Durham  as  well  as  other  parts  of  the  kingdom.* 

Closely  connected  with  the  preservation  of  the  peace  is  the 
duty  of  coercing  and  punishing  malefactors.  This  duty  of  course 
fell  upon  the  Bishop,  and  accordingly  he  prepared  a  complete 
apparatus  for  the  execution  of  it,  providing  prison,  tumbril,  gal- 
lows, and  the  like.  From  the  early  years  of  the  thirteenth  cen- 
tury, indeed,  the  entire  machinery  of  capital  punishment  was 
in   the   Bishop's  exclusive   possession.^      From    this   fact,  per- 

^  Registrum,  ii.  843  ;  Abbrev.  Plac,  243;  Year  Book  21  Hen.  VII,  33. 

2  Rot.  Pari.,  11-12  Hen.  VI,  iv.  427  ff. ;  and  see  Coke,  Fourth  Institute, 
cap.  xxxviii,  216-220. 

8  An  interesting  comment  on  this  point  is  to  be  found  among  the  reasons 
put  forward  in  support  of  John  Hastings's  claim  to  the  crown  of  Scotland, 
as  follows :  "  Nous  dioms,  que  coment  que  la  terre  de  Escoce  seit  appelle 
reaume,  la  terre  en  sei  ne  est  fors  une  seignurie,  ou  une  Honur,  sicome  Gales 
ou  le  Counte  de  Cestre,  ou  le  Esvesche  de  Durham."  Balliol's  contention  that 
the  possession  of  peace  and  justice  rather  than  the  rites  of  anointing  and  coro- 
nation constitute  royalty,  is  thus  treated  :  "  [nous  dioms]  que  pes  e  justice  ne 
pas  rei,  ne  terre  reaume;  car  mouz  iad  des  Seignuries  e  de  Honurs  de 
mesmes  les  membres  de  Engleterre  qui  ount  pes  e  justice,  sicome  mouz  de 
Marchis  de  Gales,  e  le  Conte  de  Cestre,  e  le  Evesche  de  Durham,  e  mouz  des 
Countes  e  Barones  en  Irelaunde  e  aillurs  :  "  Rishanger,  Chronica,  315-316, 
327- 

*  27  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  555. 

^  On  this  point  see  particularly  the  document  known  as  "  Le  Convenit," 
and  the  depositions  of  witnesses  examined  on  this  point  in  1228  :  Feodarium, 
212-301.     Cf.  also  Northumberland  Assize  Rolls  (Surtees  Soc),  104;  Rot. 

3 


34  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

haps,  arose  the  saying,  ""  Solum  Dunelmense  stola  jus  dicit  et 
ense."  ^ 

Like  the  king,  the  Bishop  might  delegate  certain  of  his  gov- 
ernmental functions  ;  he  might  even  appoint  persons  to  fill  his 
place  during  his  absence,  with  powers  so  extensive  as  almost  to 
constitute  a  regency.^  This  practice,  however,  was  unusual,  for 
the  senescal  or  steward,  like  the  corresponding  officer  in  a 
French  fief,  was  himself  almost  a  vicegerent.^ 

In  like  manner,  certain  persons  in  the  palatinate  enjoyed  lib- 
erties and  franchises  either  by  prescription  or  by  visible  grant 
of  the  Bishop.  The  prior  of  Durham  had  his  own  court,  and,  up 
to  a  certain  point,  almost  exclusive  jurisdiction  over  his  men  ;* 
and  it  appeared  by  the  quo  warranto  proceedings  of  1293  that 
there  were  then  twelve  lords  enjoying  more  or  less  extensive 
privileges  under  the  Bishop.^  In  1476  Bishop  Dudley  under- 
took to  regulate  these  liberties,  and  issued  a  commission  to  cer- 
tain persons  to  make  a  survey  of  the  bishopric  "  tam  infra 
libertates  quam  extra  " ;  they  were  to  have  regard,  among  other 
things,  to  all  courts  leet,  hundreds,  tourns,  and  other  courts,  in 
all  manors,  castles,  and  similar  places,  in  which  they  were  to  hold 
a  kind  of  general  inquiry,  hearing  complaints,  punishing  de- 

Parl.,  21  Edw.  I,  i.  102-105;  Rot.  i.  Hatfield,  ann.  9,  m.  9,  curs.  30;  Rot. 
A.  Langley,  ann.  2,  m.  i,  curs.  34;  Rot.  ii.  Tunstall,  ann.  5,  m.  5  dorse, 
curs.  78;  survey  of  Durham,  A.  d.  1388,  Ecclesiastical  Commissioners,  min- 
isters' accounts,  220198,  fol.  i  ;  receiver-general's  account,  a.d.  1461,  Ibid., 
189816;  and  the  indexes  of  the  various  printed  sources. 

1  This  is  ascribed  to  Bracton  by  Spearman  (Inquiry,  38),  who  gives  it 
thus  :  "Dunelmia  sola  judicat  ense  et  stola."  It  does  not,  however,  appear 
in  any  known  text  of  Bracton.  Camden  (Britannia,  ii.  935)  quotes  it  in  the 
form  given  in  the  text,  and  adds  a  picturesque  tale  to  the  effect  that  the 
Bishop  of  Durham  alone  among  the  prelates  of  the  church  passed  sentence 
of  death,  sitting  as  president  of  his  civil  court  and  yet  wearing  his  purple 
robes  as  Bishop.  If  this  be  true,  it  is  indeed  an  extraordinary  canonical 
anomaly;  but  it  is  difficult  to  believe. 

2  Registrum,  iii.  208-210,  260  ;  and  see  below,  §  9.  Cf.  also  Pollock  and 
Maitland,  i.  559. 

^  See  below,  §  9,  and  cf.  Luchaire,  Manuel,  250. 

*  Le  Convenit,  in  Feodarium,  211-217.  See  below,  §  17;  also  a  letter  of 
Bishop  Langley,  A.D.  1410,  showing  that  this  arrangement  was  still  in  force 
in  his  pontificate  (Auditor  i.  No.  2). 

5  Plac.  de  Quo  War.,  604. 


§  5]  THE   BISHOP'S  REGALITV  IN  IMPERIO.  35 

linquent  officers,  and  performing  like  offices.^  Twenty  years 
later  Bishop  Fox  instituted  true  quo  warranto  proceedings.  The 
document  is  enrolled  under  the  rubric,  "  Praeceptum  de  procla- 
macione  faciendi  in  comitatu  Dunelmense  de  quo  warranto." 
By  it  the  sheriff  is  directed  to  give  notice  of  a  general  examina- 
tion of  all  liberties  within  the  palatinate,  to  be  held  at  a  special 
session  before  the  justices  at  Durham;  whatever  lord,  temporal 
or  spiritual,  uses  or  claims  to  use  such  liberties  must  appear  and 
make  good  his  claim  upon  pain  of  forfeiting  his  liberties.^  The 
same  proclamation  was  made  in  the  outlying  district  of  Norham- 
shire.^ 

Another  instance  of  the  delegation  of  the  Bishop's  power  is 
in  the  creation  of  corporations.  Of  these,  the  most  important, 
of  course,  were  the  municipal  corporations  or  boroughs.  There 
were  five  boroughs  in  the  palatinate,  all  of  which  received  their 
privileges  and  charters  from  the  Bishop,  not  from  the  king.* 
Many  of  these  were  obtained  during  the  long  pontificate  of 
Hugh  Pudsey  (11 53-1 195),  but  there  is  an  obscure  notice  of  re- 
lations between  the  Bishop  and  his  burgesses  at  an  earlier 
period.^  The  burgesses  of  Durham,  like  the  people  of  the  county, 
had  reasons  of  their  own  for  entering  into  direct  relations  with 
the  king,  who  was  always  ready  to  encourage  any  force  that 

1  Rot.  i.  Dudley,  ann.  i,  m.  i,  curs.  54. 

2  "  My  lord  chargeth  and  straitwy  commandeth  alle  maner  of  persones, 
asewelle  abbottes,  prioures,  deanes  of  cathedralles  and  collegiate  churches, 
masters  of  hospitalles,  persones,  vicars  and  alle  other  men  of  the  churche ; 
as  mayors,  bailiffs  and  burgesses  of  cites  and  burches  and  alle  othir  lordes, 
knyghtes  and  esquyres,  freholders  and  inhabitauntes  within  the  bisshoppriche 
of  Duresme,  that  clamyth  any  maner  of  libertie  or  fraunches,  as  waif,  stray, 
forre  or  market,  court  baron  or  lete,  wreck  or  warren  or  eny  othir  libertie  or 
fraunche  ;  shalle  come  before  his  justices  at  Duresme  upon  Seynt  Lucie  day 
next  for  to  come  and  there  to  putte  in  their  claymes  in  writyng  of  their  said 
liberies  and  fraunches,  such  as  thei  wole  clayme,  upon  payne  of  forfytyng 
of  the  same  and  seasour  ther  off  to  my  lordys  handes  :  "  Rot.  ii.  Fox,  ann.  5, 
m.  II,  curs.  6i. 

8  Ibid. 

*  Municipal  Corporations  Report,  i.  App.  pt.  iii.  1511,  1523,  1529,  1727- 
1733;   Stubbs,  i.  483;  cf.  Surtees,  Durham,  iv.    14-20;   Morris,  Chester, 

lO-II. 

^  "  Willelmus  [Cumin]  non  ut  custos  sed  sicut  jam  episcopus  factus  .  .  . 
burgenses  sacramenta  fidelitatis  sibi  facere  compulit :  "  Symeon,  i.  146. 


36  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

tended  to  diminish  the  Bishop's  sovereignty.^  From  time  to 
time  the  Bishop  granted  temporary  privileges  to  his  boroughs, 
such  as  the  right  to  levy  a  kind  of  octroi^  known  as  murage  ;2 
but  any  abuse  of  privilege  was  closely  followed  up  by  the 
grantor.^  A  fuller  delegation  of  power  occurred  when  a  borough 
was  put  to  farm ;  in  this  case  the  right  to  all  profitable  jurisdic- 
tion, such  as  the  courts  of  pie-powder  and  marshalsea,  was 
transferred  to  the  lessees.*  The  minor  corporations  of  the 
palatinate,  the  industrial  companies,  also  took  their  charters 
and  confirmations  from  the  Bishop,  and  their  regulations  were 
enrolled  in  the  episcopal  chancery.^ 

In  strict  theory  the  Bishop  could  not  have  any  foreign  rela- 
tions. The  power  to  make  treaties  or  to  enter  into  direct  com- 
munication with  any  foreign  power  would  not,  in  the  nature  of 
things,  be  an  attribute  of  a  sovereignty  so  purely  local  as  was 
that  of  the  Bishops  of  Durham.  This  power,  indeed,  the  Bishops 
never  claimed,  nor  was  it  allowed  to  them,  though  there  are 
indications  that  in  regard  to  Scotland  they  were  pretty  active  in 
exercising  it.  It  is  not  difficult  to  understand  both  why  the 
treaty  power  was  denied  to  the  Bishop  and  why  this  restric- 
tion was  applied  with  considerable  leniency.      Geographically 

1  Pipe  Roil  31  Hen.  I,  in  Boldon  Book,  App.  ii-iii;  Rot.  Pat.  18  John, 
198  a;  Calendar  of  Patent  Rolls,  i334-i338,p.  387;  Rot.  Pari.,  8  Edw.  II,  i. 
302  b.  The  borough  constitution  in  the  palatinate  looked  toward  Scotland, 
but  the  mother  town  was  Newcastle-on-Tyne.  See  Gross,  Gild  Merchant,  i. 
247. 

2  See  an  elaborate  charter  of  murage  granted  to  the  city  of  Durham  by 
Bishop  Hatfield  in  1378  (Rot.  ii.  Hatfield,  ann.  33,  m.  13,  curs.  31).  This 
is  carelessly  printed  by  Hutchinson  (Durham,  i.  380  note).  For  a  similar 
charter  of  1408  see  Rot.  A.  Langley,  ann.  2,  m.  2,  curs.  34.  Charters  of 
murage  for  Hartlepool  may  be  found  in  Rot.  Fordham,  ann.  3,  m.  4,  curs.  32 ; 
Rot.  Skirlaw,  ann.  11,  m.  21,  curs.  33;  Rot.  B.  Langley,  ann.  13,  m.  16 
dorse,  curs.  35. 

8  See  a  commission  to  investigate  misappropriation  of  funds  collected 
under  a  grant  of  murage,  Rot.  Fordham,  ann.  5,  m.  8,  curs.  32 ;  and  cf.  Rot. 
Claus.  16  Ric.  II,  m.  14. 

*  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  32;  Rot.  C.  Langley,  ann.  29, 
m.  15,  curs.  36. 

^  Surtees,  Durham,  iv.  pt.  ii.  20  ff. ;  Rot.  v.  Nevill,  ann.  10,  m.  23  dorse, 
curs.  46;  Rot.  ii.  Hatfield,  ann.  28,  m.  5,  curs.  31. 


§■5]  THE  BISHOP'S  REGALITY  IN  IMP E RIO.  37 

the  palatinate  was  of  great  strategic  importance  in  all  relations 
with  the  Scots.  This  was  particularly  true  in  the  twelfth  cen- 
tury, when  the  Scottish  kings  were  striving  to  add  Cumberland 
and  Northumberland  to  their  dominions.  A  royal  highway  ran 
through  the  palatinate,^  and  on  the  Scottish  border  the  Bishop 
held  the  districts  of  Norham  and  Islandshire,  with  the  important 
fortress  of  Norham  Castle.  These  were  the  outworks;  the 
county  of  Durham  was  the  citadel  itself.  In  the  hands  of  a 
strong  ruler  this  little  principality,  extending  more  than  half 
way  across  England,  might  well^  fulfil  the  expectations  of  the 
English  kings,  by  presenting  itself  as  a  "  murus  lapideus  contra 
Scottos."^  Its  importance  in  this  respect  is  strikingly  illus- 
trated by  the  words  put  in  the  mouth  of  Henry  II  by  the  author 
of  a  contemporary  chronicle  in  Anglo-Norman  verse :  — 

"  Dune  dit  le  reis  Willame :  *  oez,  mi  chevalier. 
Par  mi  Northumberland  voil  mun  chemin  aler : 
N'i  ad  ki  cuntrestoise,  k'i  devom  dune  duter? 
L'evesque  de  Durealme  (veiz-ci  sun  messagier) 
Me  mande  par  ses  lettres  em  p^s  se  volt  ester : 
Par  lui  ne  par  sa  force  n'aurom  desturbier, 
Dunt  jo  me  puisse  plaindre  vaillant  un  denier. 


*  E  cheles  !  que  fait  I'eveske  de  Dureaume  ? ' 

—  *  II  est  trestut  k  un  e  li  reis  Willeaume.' 

—  *  Saint  Thomas,  dist  li  reis,  guardez-mei  mun  reaume.'  "^ 

Situated  thus,  it  is  small  wonder,  then,  if  a  strong  Bishop  were 
tempted  farther  to  strengthen  himself  by  coquetting  at  least  with 
the  Scots.  Pudsey,  indeed,  went  farther,  making  a  secret  treaty 
with  William  the  Lion,  by  the  terms  of  which  the  Scottish  king 
was  to  have  the  Bishop's  castle  of  Northallerton  and  free  passage 
for  his  army  across  the  palatinate ;  French  and  Flemish  troops 
were  also  to  be  permitted  to  land  at  Hartlepool.  This  arrange- 
ment was  discovered  after  the  failure  of  the  rebellion  of  1173 ; 
but  the  Bishop  incurred  no  more  serious  punishment  than  a 
heavy  fine  and  the  temporary  confiscation  of  his  castles  of  Nor- 

}  Domesday  Book,  i.  298  b;  Graystanes,  cap.  v,  in  Scriptores  Tres,  41. 
^  Foedera,  ii.  pt.  i.  302,  312,  316;  Graystanes,  cap.  xxxvii,  in  Scriptores 
Tres,  98. 

«  Jordan  Fantosme,  Chronicle  (Surtees  Soc),  lines  531-536,  1603-1605. 


38  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

ham,  Northallerton,  and  Durham.^  The  king,  however,  had  this 
danger  ever  before  him.  Accordingly  in  1238,  when  the  monks 
chose  as  their  Bishop  Thomas  de  Melsanby,  who  was  formerly 
prior  of  Coldingham  and  therefore  in  feudal  relation  to  the 
king  of  Scotland,  Henry  III  objected  strenuously.  He  pre- 
sented a  long  list  of  exceptions,  many  of  them  no  more  than 
frivolous  or  scandalous  reports,  but  embodying  these  serious 
considerations  :  that  the  Bishop-elect  was  bound  by  homage  and 
fealty  to  the  Scottish  king,  whose  intimate  councillor  he  was, 
a  circumstance  that  would  result  in  great  harm  to  the  kingdom 
of  England ;  that  the  Bishop  of  Durham  possessed  castles  and 
strongholds  on  the  Scottish  border,  which  might  be  a  source  of 
great  danger  to  the  English,  since  the  Scots  as  people  of  the 
same  race  were  always  at  war  with  them  ;  and  that  inasmuch 
as  the  Bishop  of  Durham  controlled  the  sea-coast  of  his  province, 
he  might  without  the  king's  leave  introduce  French,  Flemish, 
or  other  foreigners  into  the  kingdom.^  The  monks  were  obsti- 
nate, and  even  carried  the  affair  to  Rome ;  but  finally  they  were 
forced  to  give  way.  Thomas  de  Melsanby  was  set  aside,  and 
Nicholas  de  Farnham,  the  queen's  physician,  was  elected 
instead.^ 

A  weak  or  an  incapable  bishop,  on  the  other  hand,  would, 
naturally  enough,  resort  to  the  expedient  of  buying  off  the  Scots 
instead  of  fighting  them,  although  the  question  would  be  con- 
ditioned by  the  political  relations  of  the  two  kingdoms  at  any 
given  time.  Thus,  in  the  temporary  lull  of  hostilities  after 
Alexander  HI  had  done  homage  for  his  English  fiefs,  a  quarrel 
broke  out  between  him  and  Robert  de  Lisle,  then  Bishop  of 

1  Coldingham,  cap.  ri,  in  Scriptores  Tres,  10;  Surtees,  Durham,  i.  p.  xxiv; 
Jerningham,  Norham  Castle,  100.  The  Scottish  kings  were  perfectly  aware 
of  the  importance  of  the  palatinate  as  a  weapon  against  England.  See,  for 
example,  the  story  of  David's  attempt  to  force  his  creature,  William  Cumin, 
into  the  see.  Cumin  was  never  properly  elected,  but  by  brilliant  and  auda- 
cious manoeuvring  secured  the  temporalities,  and  contrived  to  hold  out  for 
several  years.  See  Symeon,  i.  146-161  ;  Laurentius  Dunelmensis,  Dialogi 
(Surtees  Soc),  lib.  i.  lines  63-75,  86-90,  I35-I45'  245-255,  420-430;  ii.  35- 
105,  235-535;  iii.  230-260;  below,  p.  63. 

2  Scriptores  Tres,  App.  No.  liv. 

«  Graystanes,  cap.  iv,  in  Scriptores  Tres,  3S-40. 


§  5]  THE  BISHOP  'S  REGALITY  IN  IMPERIO.  39 

Durham,  with  respect  to  their  privileges  on  the  border.  The 
afifair  was  referred  to  parHament,  which  sent  four  commissioners 
to  Northumberland  with  full  power  to  hear  and  determine  the 
whole  business,  and  with  certain  private  instructions  of  a  polit- 
ical nature.^ 

In  war  time,  or  when  there  was  danger  of  invasion,  the 
purchase  of  a  truce  was  common  enough.  In  1343  Bishop 
Bury  and  his  council  purchased  an  armistice  with  the  Scots.^ 
Earlier  than  this  similar  arrangements  had  been  made  by  the 
commnnitas  of  the  palatinate,  but,  since  its  negotiations  are 
recorded  on  the  episcopal  register,  the  Bishop  must  be  charged 
with  the  responsibility  of  them.  Thus,  in  Kellaw's  register 
there  is  the  memorandum  of  an  "accorde"  between  Robert 
king  of  Scotland  on  the  one  part,  and  "les  gentz  de  la  com- 
munalte  del  evesche  de  Duresme "  on  the  other.^  In  the 
fourteenth  century  the  people  of  the  palatinate  were  quite 
accustomed  to  this  kind  of  action,  and  considerable  light  is 
cast  on  their  method  of  procedure  by  a  case  in  the  year  13 15, 
which  will  be  considered  in  detail  in  another  chapter.*  They 
generally  deputed  two  or  three  of  their  number  to  manage  the 
business,  but  on  one  occasion  they  negotiated  through  the  prior 
of  Durham.^  These  discreditable  performances  were  strictly  for- 
bidden by  the  king,  who  directed  the  Bishop  to  proclaim  that  all 
who  entered  into  such  "  singular  and  particular  truces  "  should 
forfeit  all  that  a  man  could  forfeit.^  In  1434  Bishop  Langley, 
on  behalf  of  the  earl  of  Salisbury  then  warden  of  the  east 
march,  bound  over  one  of  his  subjects  not  to  enter  into  any 
private  arrangement  with  the  Scots.^ 

1  Foedera,  i.  pt.  ii.  544,  565;  and  cf.  Royal  Letters  (Henry  III),  i.  No. 
clxiii,  186-188.     See  also  Foedera,  i.  pt.  ii.  799,  a.  d.  1294. 

2  Rot.  Bury,  ann.  10,  m.  13  dorse,  curs.  29. 

3  Registrum,  i.  204-205,  a.  d.  1312.  This  document  passed  under  the 
privy  seal  of  the  king  of  Scotland,  and  under  the  personal  seals  of  the  three 
deputies  of  the  communitas  of  Durham,  who  conducted  the  arrangement. 

*  Below,  pp.  122-123;  Abbrev.  Plac,  336-337;  Graystanes,  cap.  xxxvi, 
in  Scriptores  Tres,  96;  Ibid.,  App.  No.  xciv. 
^  Letters  from  Northern  Registers,  232. 
^  Foedera,  ii.  pt.  i.  280. 
'  Rot.  DD.  Langley,  ann.  28,  m.  8  dorse,  curs.  37. 


40  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

The  Bishops  of  Durham  were  brought  into  direct  relations 
with  foreign  powers  in  so  far  as  they  possessed  and  exercised 
the  jurisdiction  of  admiralty  in  the  palatinate.  Thus  Bishop 
Langley  came  into  direct  communication  with  the  Hanseatic 
League,  the  town  of  Bruges,  and  other  Flemish  municipalities/ 
Another  attribute,  or  perhaps  symptom,  of  these  rudimentary 
foreign  relations  was  the  right  of  the  Bishops  to  take  at  least  a 
share  of  all  spoil,  booty,  and  ransom  of  prisoners  accruing  in 
consequence  of  the  perpetual  warfare  of  the  borders.  In  the 
account  rendered  in  1422  by  Sir  Robert  Ogle,  constable  of 
Norham  Castle  and  sheriff  of  Norhamshire,  the  following  item 
occurs  :  "  De  tertia  parte  lutri  computatoris,  et  tertia  parte 
tertiae  partis  lutri  solidariorum  suorum,  ut  de  redemptionibus 
clxxvi  Scottorum  per  ipsos  captorum  anno  praecedente  et  re- 
demptorum  hoc  anno,"  etc.^  Possibly  the  Bishop  was  theo- 
retically entitled  to  the  entire  booty  and  ransom,  for  this 
arrangement  of  a  division  by  thirds  was  made  between  him  and 
Ogle  when  the  latter  was  reappointed  in  1437.^ 

It  appears,  then,  that  in  theory  the  Bishops  of  Durham  had  no 
authority  to  deal  with  foreign  powers,  and  therefore  no  external 
relations,*  but  that  in  practice  such  relations  existed  to  a  limited 

^  Rot.  C.  Langley,  ann.  26,  m.  6,  curs.  36,  and  ann.  28,  m.  7 ;  Rot.  ii.  Nevill, 
ann.  9,  m.  13,  curs.  43.     See  this  whole  subject  treated  below,  App.  ii. 

2  Account  roll  of  the  sheriff  of  Norham,  auditor  i,  No.  3. 

*  "  Et  averount  le  dit  Evesque  et  ses  successours  Evesques  la  tierce  de 
tierce  de  quauntques  le  dit  monsieur  Robert  gaynera  en  sa  persone,  et  la 
tierce  de  tierce  de  quauntques  toutz  les  genes  que  serrount  en  le  dit  chastelle 
gaynerount  par  guerre  sur  les  enemies,  par  le  temps  qe  le  dit  monsieur  Robert 
serra  conestable  de  dit  castelle  come  desuis  est  dit"  (Rot.  DD.  Langley, 
ann.  31,  m.  16,  curs.  37).  A  Sir  Robert  Ogle  was  still  sheriff  of  Norham 
in  1452  and  the  office  of  sheriff  was  probably  feudalized  and  hereditary  in 
the  Ogle  family  (Raine,  North  Durham,  p.  8).  At  Michaelmas  he  reported 
that,  since  no  prisoners  had  been  taken  by  himself,  his  soldiers,  or  any  of 
his  men  during  that  year,  there  were  no  ransoms  to  be  accounted  for 
(Ecclesiastical  Commissioners,  ministers'  accounts,  189696). 

^  The  solitary  case  of  a  Bishop  of  Durham  who  received  foreign  ambas- 
sadors is  worth  noting,  although  from  its  isolation  it  has  no  significance  for 
this  study.  In  13 13  an  embassy,  accredited  to  the  king  of  Scots  by  the 
pope  and  the  king  of  France,  went  to  Durham  to  visit  Bishop  Kellaw,  by 
whom  they  were  received  at  Bishop's  Aukland.  See  Letters  from  Northern 
Registers,  216. 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO.  41 

degree.  They  grew  up,  partly  as  the  result  of  the  encroach- 
ments of  strong  Bishops  or  the  terrified  self-defence  of  weak 
ones,  and  partly  as  the  secondary  reaction  of  the  exercise  of 
entirely  legitimate  authority,  such  as  the  defence  of  the  border 
and  the  jurisdiction  of  admiralty. 

The  Bishop,  in  his  capacity  of  supreme  head  of  the  civil  gov- 
ernment of  the  palatinate,  had  the  right  to  all  lands  forfeited 
within  his  province  by  reason  of  treason,  or  from  other  causes. 
The  distinction  made  between  treason  and  felony  before  the 
statute  of  1352  is  of  high  importance,  for  on  it  turns  the  differ- 
entiation of  the  Bishop  of  Durham  from  the  other  great  feudal 
lords  of  England.  The  rule  was,  that  *'  the  felon's  land  escheated 
to  his  lord,  the  traitor's  land  was  forfeited  to  the  king."  ^  The 
most  common  occasion  of  forfeiture  by  treason  —  and  practically 
the  only  one  which  need  be  noticed  here — consisted  in  levying 
war  against  the  king.  This  is  a  late  growth,'^  and  does  not  come 
into  view  until  after  the  Barons'  War.  The  difficulty  arose  out 
of  the  forfeiture  of  a  man  who  had  lands  in  the  kingdom  as  well 
as  in  the  palatinate.  When  the  question  was  argued  at  a  much 
later  period  (1501),  the  rule  was  illustrated  by  putting  an  hypo- 
thetical case  thus  :  *'  John  at  Style,  lord  of  the  maner  of  Dale, 
within  Middlesex,  and  of  the  maner  of  Roke,  lying  within  the 
Bisshoprycke  of  Duresme,  is  attenynted  of  felony  or  of  high  trai- 
son  by  veredict  of  the  commune  lawe ;  like  as  the  king  in  thys 
case  may  sease  the  manere  of  Dale  lying  in  Middelsex,  soe  the 
Bisshope  of  Duresme,  be  reason  of  hys  libertie  royhall,  may  sease 
the  maner  of  Roke,  lying  within  the  said  Bisshoprick."  ^  The 
right  of  the  Bishop  to  land  forfeited  in  this  fashion  proceeded 
from  the  royal  nature  of  his  franchise.  The  Bishop,  it  was  said, 
has  "omnia  jura  regalia;"  and,  "quia  indiffinita  in  jure  equi- 
pollet  universale,"  he  must  be  entitled  to  forfeitures  of  war, 
unless  in  any  given  case  he  has  directly  or  indirectly  consented 

1  Pollock  and  Maitland,  ii.  498. 

2  Ibid.,  503. 

8  This  is  from  the  brief  of  the  Bishop's  counsel  in  the  dispute  with  the 
earl  of  Cumberland,  in  1501,  about  the  rights  to  Hartlepool.  It  is  ticketed, 
"  Instrucciones  in  anglica  pro  libertate  regali  Episcopi  Dunelmensis  per 
totam  diocesim,"  Scriptores  Tres,  App.  No.  ccclii. 


42  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

to  forego  them,  or  his  right  has  been  abridged  by  act  of  parlia- 
ment. The  king,  clearly,  may  not  seize  land  thus  forfeited  in 
the  palatinate,  for  his  writ  does  not  run  there,  and  his  officers 
would  have  no  authority  to  act  there.^ 

So  much  for  the  theory  of  the  matter:  it  remains  to  see 
how  far  this  theory  was  admitted  and  in  practice  respected  by 
the  kings  of  England.  Peter  de  Montfort  held  lands  in  both  the 
palatinate  and  the  kingdom.  After  the  battle  of  Evesham  he 
was  put  to  forfeiture  for  levying  war  against  the  king,  and  the 
latter  seized  all  his  lands,  including  the  manor  of  Greatham  in 
the  palatinate  which  he  granted  to  Thomas  de  Clare.  The 
Bishop  of  Durham  protested  and  obtained  from  the  king  a 
charter  revoking  the  former  grant  and  acknowledging  the 
Bishop's  entire  right  to  seize  the  manor  of  Greatham  as  a 
forfeiture  of  war.^ 

After  the  downfall  of  John  Balliol,  in  1296,  his  English 
estates  were  forfeited  to  the  crown.  Barnard  Castle  in  the 
palatinate  Balliol  still  held  of  the  Bishop,  who  obtained  it  as  a 
forfeiture  of  war.  The  Bishop,  at  this  time,  was  the  sumptuous 
Anthony  Bek,  whose  pontificate  (1284-13 11)  marked  the  zenith 
of  the  development  of  the  palatine  sovereignty.  Even  during 
Bek's  lifetime  the  king  took  steps  to  check  this  development 
and  to  set  a  term  to  the  growth  of  the  Bishop's  independence. 
In  1 30 1,  finding  a  respectable  pretext,  he  caused  the  temporali- 
ties of  the  bishopric  to  be  seized.  They  were  returmsd  the  next 
year,  but  were  seized  again  in  1305,  and  this  time  retained  until 
the  accession  of  Edward  II  in  1307.  In  the  mean  time,  another 
baron  of  the  palatinate  had  won  and  lost  the  perilous  crown  of 
Scotland.  The  king  thus  obtained  the  English  estates  of  Robert 
Bruce  by  way  of  forfeiture,  and,  since  the  temporalities  of  the 
see  were  in  his  hand,  he  seized  also  the  lands  in  the  palatinate 
which  Bruce  had  held  of  the  Bishop.  These  were  the  manors 
of  Hart  and  Hartnesse,  and  included  the  important  seaport 
borough  of  Hartlepool.     The  king  then  granted  Barnard  Castle 

1  Scriptores  Tres,  App.  No.  ccclii. 

2  Rot.  Pari.,  9  Edw.  II,  i.  363.  The  charter  may  be  better  read  in  an 
inspeximus  of  Henry  VI,  Rot.  Pat.  11  Hen.  VI,  pt.  ii.  m.  21-22.  Cf.  Surtees, 
Durham,  iii.  134. 


§  5]  THE   BISHOP'S  REGALITY  IN  IMPERIO.  43 

to  Guy  de  Beauchamp,  earl  of  Warwick,  and  the  manors  of 
Hart  and  Hartnesse  to  Robert  de  Clifford,  to  be  held  of  himself 
and  not  of  the  Bishop.  When  Edward  II  returned  the  tempo- 
ralities to  Bishop  Bek  they  were  therefore  diminished  by  the- 
loss  of  these  important  estates/ 

The  Balliol  and  Bruce  forfeitures  have  a  history  of  their  own, 
with  much  bearing  on  the  subject  in  hand.  Before  following 
this  history  in  detail  a  significant  point  must  be  noticed. 
Among  the  adherents  of  both  Balliol  and  Bruce  were  persons 
who  held  land  in  the  palatinate.  These  men  were  involved  in 
a  common  ruin  with  their  leaders  and,  like  them,  forfeited  their 
estates,  which  passed  without  question  to  the  Bishop  and  by 
him  were  granted  out  again.  Among  the  followers  of  Balliol 
were  John  Percy,  who  held  the  manor  of  Whitlaw  in  the 
bishopric,  Amerik  Howden,  who  held  the  manors  of  Berrington 
and  Ryley  in  Norhamshire,  and  Walter  Fitz-James,  who  held 
Buckton  and  Gosvvyk  in  Islandshire.  These  estates  were  for- 
feited to  the  Bishop  without  question  or  objection,  and  were  by 
him  immediately  granted  out  again. ^  In  the  next  century  they 
were  still  held  of  the  Bishop  and  not  the  king.^  Among  those 
who  made  forfeiture  along  with  Robert  Bruce  was  John  Selby, 
who  held  the  manor  of  Fellyng  in  the  bishopric ;  this  came  to 
the  Bishop,  and  in  the  next  century  it  was  held  of  the  prior  and 
convent  by  the  family  of  Surtees.* 

Thus  in  the  beginning  of  the  fourteenth  century  the  Bishop's 
right  to  have  forfeitures  of  war  by  reason  of  his  regality  was 
theoretically  admitted.     With  this  fact  in  mind  we  may  turn  to 

1  Graystanes,  caps,  xxx,  xlviii,  in  Scriptores  Tres,  88,  118-119;  Calendar 
of  Patent  Rolls,  1304-13 13,  pp.  333,  349;  Registrum,  ii.  795-802;  and  cf . 
Surtees,  Durham,  iii.  90-95,  iv.  50-65.  The  words  of  the  inquest,  taken 
for  the  king  at  Barnard  Castle,  deserve  especial  attention  as  admitting  the 
full  right  of  the  Bishop  to  have  this  forfeiture.     See  Registrum,  ii.  798. 

2  Rot.  Privileg.  Eccles.  Dunelm.,  in  the  Treasury  at  Durham,  cited  by 
Raine,  North  Durham,  200,  207 ;  Instrucciones,  in  Scriptores  Tres,  App. 
No.  ccclii. 

»  Registrum,  iv.  288,  310 ;  Surtees,  Durham,  ii.  331. 

*  Instrucciones,  in  Scriptores  Tres,  App.  No.  ccclii.  See  inquisitions 
and  charters  relating  to  this  manor,  printed  in  Feodarium,  8,  9,  in;  cf. 
Surtees,  Durham,  i.  ^6. 


44  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

the  history  of  the  Balliol  and  Bruce  estates.  When  the  muti- 
lated temporalities  were  restored  to  Bishop  Bek,  he  was  an  old 
and  disgraced  man,  and  seems  to  have  been  content  to  live  the 
few  years  remaining  to  him  without  further  struggle.  But 
Richard  Kellaw,  his  successor,  made  a  vigorous  effort  to 
recover  the  lost  estates.  He  brought  the  matter  into  parlia- 
ment, and,  citing  the  case  of  Henry  Hi's  restitution  of  the 
manor  of  Greatham,  based  his  demand  squarely  on  his  royal 
power,  asserting  that  he  possessed  "  omnimodas  regales  liber- 
tates."  This  claim  was  admitted,  but  seisin  was  nevertheless 
withheld,  and  for  his  pains  the  Bishop  got  no  more  than  a 
favorable  judgment.^ 

Louis  de  Beaumont,  Kellaw's  successor,  pushed  the  affair, 
and  in  1332  obtained  from  the  king  an  exemplification  of  the 
writs  which  had  issued  in  consequence  of  the  judgment  taken 
by  Kellaw.  These  are  directed  to  the  constable  of  Barnard 
Castle  and  the  bailiff  of  Hart  and  Hartnesse,  forbidding  them  to 
intermeddle  in  the  see  of  Durham  or  in  any  wise  to  exercise  the 
royal  authority  therein.  The  keeper  of  escheat  lands  in  North- 
umberland is  also  informed  that,  since  it  has  been  agreed 
that  the  Bishop  of  Durham  ought  to  have  forfeiture  of  war 
within  his  liberty,  he  (the  keeper)  must  remove  the  king's  hand 
from  the  estates  in  question  and  not  further  intermeddle 
therein.  Similar  writs  were  issued  to  other  persons  concerned 
in  the  matter.^  The  splendor  of  these  rich  acknowledgments 
was  the  only  satisfaction  that  Bishop  Beaumont  ever  got,  for 
the  lands  remained  in  the  king's  hand,  as  appears  from  a 
suit  in  parliament  relative  to  a  manor  in  the  seignory  of 
Barnard  Castle.^  They  were  all  again  confirmed  by  Henry  V 
to  Thomas  Langley,  Cardinal  Bishop  of  Durham,  but  in  1433 
Langley  had  not  yet  obtained  seisin  of  the  estates,  nor  did 
he  ever  obtain  it.* 

In  the  mean  time,  legal  learning  on  the  subject  of  treasons 

1  Rot.  Pari.  9  Edw.  II,  i.  362-364. 

2  Calendar  of  Patent  Rolls,  1 330-1 334,  p.  360;  cf.  Graystanes,  cap. 
xlviii,  in  Scriptores  Tres,  118. 

3  Rot.  Pari,  Edw.  Ill,  ii.  379  a. 

*  Ibid.,  11-12  Hen.  VI,  iv.  427  ff. 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO.  45 

and  their  consequences  had  been  enriched  by  the  great  statute 
of  Edward  III,  which,  having  defined  the  offences  that  shall 
be  reckoned  treasonable,  provides  that  ''of  such  treason  the 
forfeiture  of  the  escheats  pertaineth  to  our  sovereign  lord,  as 
well  of  the  lands  and  tenements  holden  of  other,  as  of  himself."  ^ 
There  was  no  saving  clause  for  the  Bishop  of  Durham's  liber- 
ties. The  king  had  therefore,  the  royal  lawyers  might  say, 
deliberately  if  tacitly  withdrawn  from  the  Bishop  the  privilege 
for  which  the  latter  had  been  contending;  for,  they  might 
argue,  although  the  Bishop's  claim  was  good  at  common  law 
—  and  the  king  had  admitted  as  much  —  still  parliament  was 
supreme,  and  the  words  of  parliament,  in  this  case  at  least, 
were  unmistakable.  But  how  was  this  contention  borne  out 
by  subsequent  events  ? 

In  1416  Bishop  Langley  caused  an  inquest  to  be  taken  with 
regard  to  the  land  of  Henry,  lord  Scrope,  of  Masham,  who 
had  been  attainted  of  treason  and  had  forfeited  his  estates  to 
Henry  V.  The  act  of  attainder  contained  a  saving  clause  for 
royal  libertico,  and  under  this  the  inquest  returned  that  lord 
Scrope  had  been  seised  of  the  manor  of  Winston  in  the  liberty 
of  Durham.  This,  by  reason  of  the  forfeiture  and  by  right  of 
the  church  of  Durham,  was  taken  into  the  Bishop's  hand,  where 
it  remained  until  1453,  when  Bishop  Nevill  seems  to  have 
granted  it  again  to  the  Scrope  family .2  Sir  Thomas  Gray,  who 
held  the  manors  of  Urpath  and  Ebstowe  and  various  other  lands 
and  tenements  in  the  palatinate,  fell  under  the  same  attainder  as 
lord  Scrope,  and  his  palatinate  lands  were  accordingly  seized 
by  the  Bishop.  In  1430  Ralph  Gray,  the  son  of  this  Sir  Thomas, 
petitioned  the  Bishop  for  restitution  of  these  lands  on  the 
ground  that  his  father  by  the  form  of  the  original  gift  had  no 
estate  in  them  but  only  a  fee  tail.^  The  restitution  seems  to 
have  been  delayed  until  1456.^  Two  other  cases  of  forfeiture 
for  treason  occurred  in  the  early  part  of  Edward  IV's  reign,  in 

1  25  Edw.  Ill,  Stat.  5,  cap.  ii,  Statutes,  i.  320. 

*  Rot.  iii.  Nevill,  ami.  15,  m.  14,  curs.  44. 

^  Rot.  DD.  Langley,  ann.  24,  m.  2,  curs.  37. 

*  Rot.  iv.  Nevill,  ann.  18,  m.  2-3,  curs.  45.  Surtees  (Durham,  ii.  192) 
mentions  the  circumstance,  but  his  date  is  wrong. 


46  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  IL 

1464  and  1466  respectively.  In  these  it  was  provided  by  letters 
patent  that  all  the  possessions  of  the  offenders  in  England, 
Ireland,  Wales,  Calais,  and  the  marches  of  Scotland  that  were 
not  within  the  liberty  of  the  bishopric  of  Durham,  should  go 
to  the  king.^  Laurence  Booth,  the  Bishop  at  that  time,  had 
been  a  passionate  supporter  of  the  house  of  Lancaster ;  but  he 
made  his  peace  with  Edward  IV  after  having  suffered  depriva- 
tion for  two  years  (1462-1464),^  and  was  received  into  such 
favor  that  he  ventured  in  1470  to  reopen  the  old  question  of 
the  Bruce  and  Balliol  forfeitures,  and  obtained  from  the  king 
a  very  full  acknowledgment  of  his  rights  to  have  forfeitures  in 
general,  as  well  as  that  of  Barnard  Castle  in  particular.^ 

5  Calendar  of  Patent  Rolls,  1461-1467,  pp.  363,  549. 

2  Foedera,  xi.  518-519. 

8  "  Edwarde  by  the  grace  of  God  kynge  of  Englande  and  of  Fraunce  and 
lord  of  Irlande,  to  ye  reverende  fader  in  God  Laurence  Bysshopt  of  Duer- 
esme  [sic]  greting.  For  asmoche  as,  by  a  peticion  showed  unto  us  one  your 
behalve,  we  have  understande  howe,  be  vertu  of  reasone  of  the  libertes  and 
fraunchises  by  our  noble  progenitors  graunted  unto  ye  churche  of  Duresme, 
amonge  other  things  alle  maner  forfaitures  fallyng  unto  ye  Bysshopryche  of 
Duresme  shulde  owe  and  apperteigne  to  ye  sayd  churche  and  Bysshope  of 
ye  same  for  ye  tyme  being,  and  by  vertu  of  ye  same  liberties  and  fraun- 
chises ye  and  your  predecessours  have  be[en]  in  possessione  of  suche  for- 
faitures, out  of  tyme  of  mynde  ;  and  among  other  ye  manoir  and  Castelle 
called  Bernard  Castelle,  which  fylle,  be  forfaiture  of  John  Ballyole  sumtyme 
lord  thereof,  into  ye  handes  of  Antoyne  sumtyme  Bysshope  of  ye  sayd 
Churche  of  Duresme,  whyche  ye  same  Bysshope  of  long  tyme  in  right  of 
his  said  churche  hadde  and  possessed ;  and  how  it  be,  yat  in  tyme  of  our 
noble  progenitour  Edwarde  the  first  ye  sayd  manoir  was  seased  in  to  his 
handes  and  so  a  grete  tyme  remaignet,  notwithstanding  that  delygent  pour- 
sute  was  madd,  aswele  unto  hym  in  his  parlyament,  as  unto  our  progenitour 
Edwarde  ye  secunde,  which  couthe  not  be  obteigned  but  was  delayed :  yet 
afterwards  in  a  parliament  holden  ye  xiiii  day  of  February  ye  furst  yere  of 
ye  reigne  of  our  noble  progenitour  Edwarde  ye  thridde,  after  ye  sayd  peti- 
cion an  thansweres  thereto  in  ye  sayd  iather  parlyament  made,  examyned 
and  viply  understande,  wyth  other  memorialles  and  remembraunces  re- 
maignyng  in  his  Tresorie  and  also  Chauncellarie  concernyng  ye  sayd 
matyr,  yt  was  accorded  and  agreed  yat  ye  sayd  Bysshope  shuld  and  ought 
to  have  the  sayd  forfaitures,  as  in  ye  peticion  and  recordes  of  ye  parlyament 
of  our  progenitour  Edward  ye  thridde  is  conteigned  alle  at  large,  and  we, 
desyryng,  accordyng  to  ye  graunt  of  our  sayd  noble  progenitours  in  yat 
behalve,  we  be  content  and  woll  that  ye  occupie,  have  and  enjoye  ye  sayd 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO.  47 

The  question  was  again  regulated  by  parliament  in  1534,  by  an 
act  which  provided  substantially  that  all  lands  and  tenements  in 
which  persons  attainted  of  treason  had  any  estate  of  inheritance 
(fee  tail,  for  example,  as  in  the  case  of  Sir  Thomas  Gray), 
should  pass  to  the  king  as  forfeiture.^  The  Bishop,  Cuthbert 
Tunstall,  was  near  the  person  of  the  king  and  must  have  ob- 
tained special  favor  in  the  matter  of  forfeitures,  for  he  seems  to 
have  taken  them  without  meeting  objection.  Thus  in  1539  he 
made  a  grant  of  the  manor  of  Thorpe-Bulmer,  which  had 
been  forfeited  by  the  attainder  of  Sir  John  Bulmer.  The 
document  according  the  grant  sets  forth  that  the  right 
to  such  forfeitures  belonged  to  the  Bishops  of  Durham,  by  pre- 
scription, by  royal  concession,  and  by  grant  of  the  reigning 
king,  and  Tunstall  professes  to  act  "auctorite  suprema  regia 
sufficienter  sufFultus."  ^  The  Bishop  made  a  precisely  similar 
grant  in  1544.^  No  other  case  comes  to  view  until  1570,  when, 
by  the  attainder  of  Charles,  earl  of  Westmoreland,  for  his  con- 
cern in  the  Rising  in  the  North,  the  great  estates  held  by  the 
Nevills  in  the  palatinate  were  cast,  like  the  apple  of  discord, 
between  the  Bishop  and  the  queen. 

It  is  remarkable  that,  in  the  two  centuries  that  lie  between 
Edward  Ill's  statute  and  the  forfeiture  of  the  earl  of  Westmore- 
land, the  question  as  to  how  far  the  Bishop's  right  to  forfeitures 
for  treason  was  affected  by  the  legislation  on  that  subject  had 
never  been  fairly  met  and  answered.  The  reason  is  sufficiently 
obvious  :  during  the  period  in  question  no  lands  of  any  consider- 
able value  had  been  forfeited  in  the  palatinate.  Successive  kings 
and  Bishops,  accordingly,  actuated  on  the  one  side  by  that  im- 
pulse of  conservatism,  which  has  always  moved  Englishmen  to 
cling  to  existing  institutions,  and  on  the  other  by  a  wise  policy 
of  preferring  substance  to  shadow,  were  content  to  arrive  at  a 
sort  of  modus  vivendi.     Thus  the  question  of  theoretical  right 

manoir  and  castelle  wyth  alle  thappurtenaunces  accordyng  to  your  right 
and  title.  Geven  under  oure  prive  seel  at  Lewes  ye  secunde  day  Juyne  ye 
X  yere  ouer  Reigne"  (Rot.  ii.  Booth,  10  Edw.  IV,  m.  4,  curs.  49). 

1  26  Hen.  VIII,  cap.  xiii,  Statutes,  iii.  508-509. 

2  Rot.  i.  Tunstall,  ann.  30  Hen.  VIII,  curs.  ^T. 
8  Ibid.,  ann.  14,  m.  32,  curs.  TJ. 


48  THE  BISHOP  AS  LORD  PALATINE,  [Ch.  II. 

was  never  tested,  for  in  every  case  the  king  or  parliament  made 
special  provision  for  the  Bishop  of  Durham  in  respect  of  lands 
forfeited  in  the  palatinate.^ 

When  estates  of  great  value  were  concerned,  however,  this 
laissez-faire  policy  became  impossible.  Elizabeth,  moreover, 
was  a  prudent  sovereign,  in  need  of  money;  and  though  she 
did  not  scruple  to  infringe  the  Bishop's  rights,  she  had  at  least 
more  justification  than  Edward  I,  who  had  retained  the  Bruce 
and  Balliol  forfeitures  on  **  the  good  old  rule  the  simple  plan."  ^ 
But  Bishop  Pilkington  would  not  resign  his  claims  to  Elizabeth 
without  a  struggle,  and  hence  brought  the  matter  into  court, 
contending  that  the  bishops  of  Durham,  having  \i2Ajura  regalia 
and  therefore  the  escheats  and  forfeitures  of  lands  of  traitors 
held  of  them  within  their  franchise  before  the  statute  of  1352, 
should  not  by  that  statute  be  deprived  of  their  rights.  The 
court  held  that  the  statute  did  not  in  effect  deprive  the  Bishops 
of  their  right  to  forfeitures,  because  it  was  not  a  creation  of  new 
treasonable  offences  but  a  definition,  made  by  the  king  at  the 
request  of  parliament,  of  such  offences  as  were  already  treason- 
able at  the  common  law.  The  forfeitures  referred  to,  therefore, 
were  not  given  to  the  king  by  the  act,  but  were  merely  de- 
clared to  be  his  right  at  the  common  law.     But  Henry  VIII's 

1  There  was  indeed  one  occasion  on  which  parliament  went  contrary  to 
this  principle.  In  1383  Bishop  Fordham  petitioned  the  king  in  parliament  for 
redress,  on  account  of  the  seizure  by  the  king  of  certain  lands  in  the  palatinate 
forfeited  by  reason  of  the  attainder  of  Roger  Fulthorpe  and  Michael  de  la  Pole. 
Parliament  had  provided  that  the  forfeited  possessions  of  these  persons,  as 
well  within  franchises  as  without,  should  go  to  the  king  (Rot.  Pari.,  7  Ric.  II, 
iii.  177  a).  This  document  must  be  misplaced.  Fulthorpe  and  Suffolk 
were  impeached  by  the  Merciless  Parliament  in  1388;  and  Fordham,  the 
king's  treasurer  and  intimate  adviser,  involved  in  the  ruin  of  his  master, 
was  two  years  later,  in  1390,  translated  in  disgrace  to  Ely  (see  Chambre, 
cap,  iv,  in  Scriptores  Tres,  144).  Clearly,  then,  the  petition  was  exhibited 
between  1388  and  1390.  Richard  granted  Sir  Roger  Fulthorpe's  lands  to 
the  latter's  son  to  be  held  during  the  lifetime  of  his  father,  and  hence  the 
succession  was  unchanged  (Rot.  Pat.  13  Ric.  II,  No.  23) ;  but  Suffolk's  lands 
were  restored  to  Bishop  Skirlaw,  in  order,  as  is  probable,  that  they  might 
be  returned  to  Michael  de  la  Pole,  the  second  earl  of  Suffolk  (Rot.  Skirlaw, 
ann.  12  Ric.  II,  m.  i,  curs.  33). 

2  Graystanes,  commenting  on  this  matter  a  generation  later,  tempers  his 
regret  with  philosophy  (see  cap.  xxx,  in  Scriptores  Tres,  88-89). 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO.  49 

Statute  ^  was  not  open  to  this  construction,  although  five  of  the 
nine  justices  contended  that,  since  it  contained  a  saving  clause  for 
strangers,  it  did  not  destroy  the  Bishop's  right.  The  remaining 
four  insisted  that  "  by  this  statute  escheats  and  forfeitures  for 
treasons  are  taken  from  him  who  \i2js,jura  regalia  as  well  for  lands 
in  fee  simple  as  in  tail ;  "  they  argued  that  the  forfeiture  clause 
was  general,  and  included  all  manner  of  treasons,  while  the  rever- 
sion of  the  forfeited  lands,  no  matter  how  or  of  whom  held,  was 
limited  to  the  king,  his  heirs,  and  successors.  It  was  agreed  at 
length  that  lands  entailed  or  held  in  the  right  of  the  church  might 
forfeit  to  the  king.^ 

But  the  queen  was  determined  that,  however  the  judgment 
went,  the  lands  should  come  to  her.  Hence,  while  Pilkington's 
case  was  still  pending,  the  act  of  attainder  was  passed,  providing 
that  all  the  lands  and  goods  of  the  traitors  should  forthwith  come 
to  the  queen.  It  was  further  stated  that,  since  a  great  part  of 
these  lands  and  other  possessions  lay  in  the  palatinate  "  where  the 
.  .  .  Bishop  of  Durham  doth  now  claim  Jura  Regalia,  and  by  reason 
thereof  doth  challenge  to  have  all  the  said  forfeitures,  as  in  right 
of  his  church,  the  tryall  of  which  challenge  and  claime  is  now 
depending,"  and  since  the  queen  had  been  at  great  expense  in 
repressing  the  rebellion  and  thereby  had,  among  other  things, 
preserved  the  Bishop's  life,  therefore  '*  the  Queene  .  .  .  shall 
for  this  time  have,  hold  and  enjoy  against  the  said  Bishop  and 
his  successors,  all  the  said  honors,  manners,  lands,  tenements," 
etc.,  of  the  offenders  within  the  palatinate.  It  was  hinted,  how- 
ever, that  should  the  judgment  then  pending  go  against  the 
queen,  she  might  of  her  bounty  restore  to  the  Bishop  some  part 
of  the  forfeited  lands  ;  and  it  was  also  provided  that  in  the  same 
event  whatever  of  these  lands  should  happen  to  be  granted  out 
again  by  the  queen  should  be  held  by  the  grantees  not  of  her  but 
of  the  Bishop.^ 

In  this  fashion  the  troublesome  question  was  at  length  settled. 
Elizabeth's  immediate  or  personal  motives  do  not  concern  this 
study,  but  it  may  be  noted  that  her  act  in  respect  to  the  palat- 

1  26  Henry  VIII,  cap.  xiii,  Statutes,  iii.  508-509. 

2  12  Eliz.,  Pasch.,  Dyer's  Reports,  283-289. 
8  13  Eliz.,  cap.  xvi,  Statutes,  iv.  pt.  i.  551. 

4 


50  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

inate  marks  another  step  in  the  path  opened  by  her  father  in 
1536.  Feudal  institutions  had  no  place  in  the  economy  of  the 
Tudor  regime.  A  spirit  of  cautious  conservatism  had  indeed 
unduly  preserved  one  and  another  of  the  privileges  of  the  pa- 
latinate ;  but  these  were  justly,  if  somewhat  ruthlessly,  cleared 
away  whenever  they  threatened  to  impede  the  march  of  the 
new  ideas  which  now  had  possession  of  the  civilized  world. 

As  supreme  head  of  the  civil  government  in  the  palatinate 
the  Bishop  stood  toward  the  church  in  a  relation  peculiarly 
complex.  In  this  connection  we  shall  consider  first  the  regular 
clergy.  There  was  but  one  monastic  body  in  the  province, 
namely,  the  Benedictine  convent  of  Durham  with  its  dependent 
cells.  Bishop  Pudsey  is  said  to  have  attempted  to  establish  a 
house  of  Augustinian  friars,  but  the  effort  was  frustrated  by  the 
monks  of  Durham.^  The  friars,  indeed,  never  obtained  a  foot- 
hold in  the  palatinate,  nor  were  they  allowed  even  to  preach  in 
Durham,  since  this  privilege  was  reserved  by  ancient  custom  for 
the  Benedictine  monks  of  that  place.^  The  prior  was  elected  by 
the  monks,  under  authority  oi  2l  cong^ d' Hire  issued  by  the  Bishop 
qud  dominiis  ;^  and  during  vacancies  the  temporalities  of  the 
priorate  vested  in  the  Bishop.*  This  arrangement  gave  rise  to 
endless  disputes  and  to  a  good  deal  of  chicanery  on  both  sides. 
It  is  worth  while  to  devote  some  attention  to  these  otherwise 
trivial  quarrels,  for  they  cast  much  light  upon  the  practical  effect 
of  the  Bishop's  anomalous  status  on  his  relation  to  the  church. 

In  1272  the  Bishop  allowed  the  prior  to  resign,  and  imme- 

1  Tanner,  Notitia  Monastica,  s.  v.  "Durham." 

2  Scriptores  Tres,  App.  No.  cxv. 

3  Graystanes,  cap.  vi,  in  Scriptores  Tres,  44;  see  also  Ibid.,  54,  and  App. 
Nos.  cxlvi,  cxlix,  clxxx,  ccxxx. 

^  Graystanes,  cap.  xii.  Ibid.,  53  £E.,  A.  d.  1270:  "  In  crastino  .  .  .  ingressi 
sunt  aulam  in  Abbathia,  ex  parte  Episcopi,  quinque  vel  sex  .  .  .  quorum 
unus  erat  coronator  episcopi  .  .  .  qui  dixerunt  Priorem  mortuum  et  se  ibi 
venisse  ad  capiendum  prioratum  in  custodiam  Episcopi ;  audierat  enim  Epis- 
copus  de  morte  Prioris  et  mandaverat  suis  ut  prioratum  in  suam  saysirent 
custodiam"  (Graystanes,  cap.  xxix,  Ibid.,  86,  A.  d.  1307)  ;  "  Litera  Episcopi 
ad  recipiendum  commissarium  suum  pro  custodia  Prioratus  "  (Ibid.,  App. 
No.  cxlvii,  A.  D.  1391).  On  the  dispositions  of  advowsons,  vacante  prioratu, 
cf.  Rot.  ii.  Hatfield,  ann.  31,  m.  8,  curs.  31 ;  and  on  the  general  attitude  of 
the  prior  toward  the  Bishop,  Registrum,  i.  359-361. 


§  5]  THE  BISHOP  'S  REGALITY  IN  IMPERIO.  5 1 

diately  afterward  he  sent  to  the  convent  the  steward  of  the 
palatinate,  the  constable  of  Durham  Castle,  and  several  minor 
officers,  who,  in  the  Bishop's  name,  took  possession  of  the  house 
and  instituted  the  constable  as  custodian.  The  next  day  the 
constable  summoned  the  subprior  and  other  officers  and  said  to 
them  :  "  This  house  is  in  the  custody  of  my  lord  ;  therefore  I  wish 
to  see  those  who  have  the  care  of  it,  to  take  from  them  an  oath  of 
fidelity,  or  to  remove  them  and  substitute  others  as  I  see  fit."  The 
subprior  protested  that  this  was  impossible,  saying  that  in  times 
of  vacancy  the  Bishops  had  never  done  more  than  send  some  clerk 
to  take  charge.  The  convent  complained  to  the  Bishop,  who 
replied  that  the  house  was  in  his  custody  and  proceeded  to  seize 
a  number  of  manors  belonging  to  the  convent  and  to  place  custo- 
dians in  them.  These  officers,  however,  were  subsequently  re- 
moved, and  the  affair  was  thus  compromised.^  In  the  mean  time 
a  much  more  important  matter  had  arisen.  The  convent  wrote 
to  the  Bishop,  asking  leave  to  elect  a  new  prior ;  the  Bishop  re- 
fused permission  because  the  letters  were  not  addressed  to  him 
"  tanquam  patrono  et  domino,"  adding  that  unless  the  monks 
acknowledged  his  right  in  this  respect  they  need  not  hope  for 
the  desired  license.  This  claim  was  based  on  one  set  up  by 
his  predecessor,  Nicholas  de  Farnham,  who  desired  to  be  ad- 
dressed as  "pater  et  patronus  in  temporalibus  et  spiritualibus," 
but  did  not  succeed  in  forcing  the  convent  to  do  this.  The 
monks,  objecting  only  to  the  spiritual  superiority  of  the  Bishop, 
were  glad  to  readdress  their  letters  "  patrono  in  spiritualibus  et 
temporalibus,"  and  thus  the  matter  was  adjusted.^ 

Bishop  Bek  at  one  time  undertook  to  depose  a  prior  who 
showed  too  great  independence  and  to  substitute  one  more  flexi- 
ble to  his  will.  The  attempt  failed :  the  Bishop  lost  his  head 
and  went  to  unjustifiable  extremes,  while  the  prior,  keeping 
strictly  within  the  letter  of  the  law,  wisely  enlisted  the  sympathies 
of  the  Bishop's  disaffected  subjects,  and  thus  fortified  appealed 
to  the  king  in  parliament.^     At  all  times,  however,  the   prior 

1  Graystanes,  cap.  xii,  in  Scriptores  Tres,  53-54. 

*  Ibid.     The  prepossession  of  the  monks   with  the  point  of  spiritual 
supremacy  appears  clearly  in  this  text. 
3  Ibid. 


\ 


52  THE  BISHOP  AS  LORD  PALATINE,  [Ch.  II. 

and  convent  had  to  steer  a  perilous  course  between  the  Scylla 
and  Charybdis  of  the  Bishop's  double  status.  Their  difficulty  is 
well  illustrated  by  a  dissension  that  arose  in  1328.  The  Bishop 
in  the  discharge  of  his  spiritual  functions  undertook  to  visit  the 
convent.  After  this  had  been  accomplished  in  spite  of  various 
objections,  he  sent  word  to  the  prior  that  he  wished  to  have 
certain  officers  of  the  convent  dismissed.  The  prior  took  council 
with  the  monks,  some  of  whom  were  minded  to  regard  this  step 
as  an  infringement  of  their  privilege.  Others  urged  that  '*  it 
was  a  heavy  thing  to  strive  with  the  Bishop,  inasmuch  as  he  was 
lord  both  in  temporal  and  spiritual  affairs,"  and  advised  that, 
since  the  point  at  issue  was  no  more  than  the  exercise  of  the 
prior's  undoubted  right,  he  should  dismiss  the  officers,  "  non  .  .  . 
propter  injunctionem  Episcopi,  sed  motu  proprio."  This  course 
was  followed,  but  Graystanes  (who  wrote  of  personal  experi- 
ence) adds  ruefully :  "In  omni  actione  Prioris  contra  Episco- 
pum  confundit  Priorem  potestas  Episcopi  in  spiritualibus  et 
temporalibus ;  et,  si  Episcopus  excesserit,  rehabendi  remedium 
est  difficultas."  ^  Nevertheless,  in  the  event  of  outrageous  or 
oppressive  conduct  on  the  part  of  the  Bishop,  an  appeal  was 
always  possible  to  the  king  in  parliament.  Such  an  appeal 
was  actually  made  in  1301  by  the  prior,  Richard  Hoton,  and  it 
resulted  in  the  deprivation  of  the  Bishop.^  Interference  of  this 
kind  was  uncommon,  however;  until  the  close  of  the  middle 
ages  the  Bishop  and  the  monks  were  usually  left  alone  to  settle 
their  disputes  and  adjust  their  mutual  relations  as  best  they 
might.  At  length  the  great  religious-political  upheaval  of 
Henry  VIII's  reign  put  an  end  to  any  question  of  the  Bishop's 
temporal  supremacy  in  regard  to  the  convent,  by  the  removal  of 
one  of  the  parties  to  the  contest. 

The  temporal  relation  of  the  Bishop  to  the  secular  clergy  was 
in  the  nature  of  things  very  limited.  In  the  kingdom  this  rela- 
tion centred  chiefly  on  the  choice  ot  bishops  and  their  subse- 
quent adjustment  of  loyalty  as  between  the  king  and  the  pope. 
In  this  aspect  the  Bishop  of  Durham  was  like  any  other  prelate 
of  the  realm ;  hence  his  complex  status  does  not  at  all  come  into 

1  Cap.  xli,  in  Scriptores  Tres,  104-105. 

2  The  whole  story  is  related  below,  p.  24  f. 


§  5]  THE  BISHOP'S  REGALITY  IN  IMPERIO.  53 

play.  In  his  relation  to  his  immediate  spiritual  superior,  the 
archbishop  of  York,  however,  the  intricacy  of  this  status  is 
somewhat  deliberately  brought  forward,  and  the  metropolitan, 
like  the  prior,  is  confounded  by  the  Bishop's  spiritual  and  tem- 
poral power.  What  the  Bishop  .did  was  to  resist  the  process  of 
visitation  by  the  archbishop,  and  then,  standing  squarely  on  his 
character  of  a  lay  baron  who  might  not  without  the  king's  leave 
be  excommunicated,  to  defy  the  spiritual  consequences  of  his  act. 

This  somewhat  disingenuous  manoeuvre  was  carried  through 
by  Bishop  Bek  in  1292,  when  the  palatine  regality  had  attained 
its  richest  development.  The  archbishop  had  sent  two  properly 
commissioned  persons  to  visit  the  diocese  of  Durham.  Bek  was 
absent  with  the  king  on  their  arrival,  but  his  temporal  officers 
promptly  imprisoned  the  commissaries  in  Durham  castle ;  where- 
upon the  archbishop,  through  the  prior  of  Bolton,  excommuni- 
cated Bek,  who  at  once  brought  the  matter  before  parliament. 
The  archbishop  contended  that  he  was  quite  within  his  canoni- 
cal right  in  excommunicating  his  insubordinate  suffragan.  To 
this  the  Bishop's  counsel  made  the  well-known  answer :  **  Epis- 
copus  Dunelmensis  habet  duos  status,  videlicet,  statum  episcopi 
quoad  spiritualia  et  statum  comitis  palacii  quoad  tenementa  sua 
temporalia."  The  archbishop  admitted  the  double  status,  but 
submitted  that  the  Bishop  in  his  spiritual  aspect  still  owed  him 
canonical  obedience.  This  was  allowed,  but  it  was  held  that, 
since  the  imprisonment  was  effected  by  the  lay  officers  of  the 
Bishop  during  his  absence,  and  since  the  castle  in  which  the 
commissaries  were  confined  was  of  the  barony  and  not  of  the  see 
(for  the  king  held  \\.sede  vacante),  the  Bishop  was  justified  ;  and 
judgment  was  therefore  given  in  his  favor.^ 

The  relation  of  the  Bishop  as  head  of  the  civil  government  to 
the  church  in  its  judicial  aspect,  that  is,  to  the  authority  of  the 
church  as  expressed  in  an  hierarchy  of  ecclesiastical  courts,  is 
more  conveniently  discussed  in  another  context.  Here  it  will 
suffice  to  say,  by  way  of  anticipation,  that  the  Bishop  qud 
dominus  issued  prohibitions,  writs  for  certification  of  divorce, 
bastardy,  and  the  like,  and  in  general  regulated  the  relations  of 
the  two  jurisdictions.*'* 

1  Rot.  Pari.,  21  Edw.  I,  i.  102-105.  a  See  below,  §  23. 


54  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

The  Bishop's  temporal  relation  with  the  church  ended  with 
the  Act  of  Supremacy.  Cuthbert  Tunstall,  the  contemporary 
Bishop,  accepted  the  new  order,  in  so  far  as  it  related  to  his 
episcopal  franchise,  with  equanimity  and  even  enthusiasm.  He 
aimed  at  something  higher  than  the  extension  or  even  the 
preservation  of  the  palatinate.  He  was,  moreover,  somewhat  in 
disfavor  at  court,  and  hence  was  glad  of  an  opportunity  to  prove 
his  loyalty.  In  March,  1534,  he  renounced  the  papal  jurisdic- 
tion and  acknowledged  the  king's  supremacy  in  the  church.^ 
In  July,  1535,  he  wrote  to  Cromwell,  laying  stress  on  his  ac- 
ceptance of  the  king's  attitude,  and  indicating  by  his  somewhat 
over-zealous  protestations  the  suspicion  with  which  he  was  still 
regarded. 2  This  disfavor  was  partly  due  to  the  temper  of  his 
subjects,  which  became  sufficiently  evident  in  1536,  the  year 
of  the  Pilgrimage  of  Grace.  Tunstall  weathered  the  storm  and 
became  the  first  president  of  the  north.^ 

The  convent  fared  well  in  this  crisis ;  it  was  transformed  into 
a  body  of  cathedral  clergy  with  scarcely  any  diminution  of  its 
possessions,  and  the  last  prior  became  the  first  dean.*  The 
monks  indeed  had  bribed  heavily,  the  comperta  of  the  house 
were  mild,  and  the  commissioners  made  a  favorable  report ;  ^ 
but  beyond  this  it  is  perhaps  not  fantastic  to  discern  in  the 
tenderness  with  which  the  convent  was  treated  some  vague 
respect  for  the  Bishop's  earlier  rights. 

§  6.    The  Bishop's  Regality  in  Dominio. 

The  Bishop's  regality  must  now  be  considered  under  the  sec- 
ond category,  that  is,  with  regard  to  his  powers  in  dominio.  The 
point  of  departure  here  is  the  fact  that  within  the  palatinate  the 
Bishop  was  universal  landlord ;  that  is  to  say,  in  the  bishopric 
no  land  was  held  of  the  king  and  all  land  was  held,  mediately  or 

^  Calendar  of  Letters  and  Papers,  Henry  VIII,  viii.  No.  311. 

2  Strype,  Ecclesiastical  Memorials,  i.  App.  I38-I39»  ^"d  cf.  Ibid.  206  £f. 

8  See  his  letter  to  Cromwell,  19  January,  1538,  in  Calendar  of  Letters 
and  Papers,  Henry  VIII,  xiii.  pt.  i.  No.  107. 

*  Surtees,  Durham,  i.  p.  Ixix. 

5  Calendar  of  Letters  and  Papers,  Henry  VIII,  x.  Nos.  364,  721,  and  cf. 
No.  182. 


§6]  THE  BISHOP'S  REGALITY  IN  DOMINIO.  55 

immediately,  of  the  Bishop.  This  conclusion  is  reached  by  a 
double  process,  namely,  by  the  exclusion  of  the  king  and  the 
inclusion  of  the  Bishop.  The  royal  records  contain  only  inci- 
dental notices  of  Durham ;  it  does  not  appear  in  the  Domesday 
survey;^  it  does  not  account  at  the  exchequer  or  figure  in  the 
pipe  rolls  except  during  vacancies  of  the  see;  the  documents 
which  illustrate  the  king's  feudal  supremacy  in  other  counties  — 
inquisitions/^^/  mortem  and  the  like  —  are  lacking  for  Durham; 
the  king  had  no  escheator  or  other  officer  there  to  look  after  his 
interests  ;  and  finally  the  king  makes  no  grant  of  feudal  privilege 
relative  to  land  in  Durham.^  As  to  the  inclusion  of  the  Bishop, 
it  will  presently  be  seen  that  he  possessed  all  the  rights  which 
the  king  lacked.  There  is  no  record  of  the  Bishop's  holding  of 
any  one  else  in  the  palatinate ;  like  the  king  in  England  he  was 
always  lord  and  never  tenant,  and  enjoyed  very  exceptional 
rights  within  the  feudal  sphere.^  It  is  with  these  rights  that 
we  are  chiefly  concerned ;  we  shall  best  arrive,  therefore,  at  an 
understanding  of  the  Bishop's  royal  position  in  the  feudal  struct- 
ure of  the  palatinate,  if  attention  be  concentrated  on  those  attri- 
butes by  which  he  was  differentiated  from  an  ordinary  feudal  lord. 
In  the  matter  of  reliefs,  so  long  a  subject  of  bitter  controversy 
before  it  was  legally  adjusted,  the  king  was  outside  the  common 
law,  for  he  was  entitled  to  primer  seisin ;  that  is,  he  had  the 
right,  on  the  death  of  a  tenant-in-chief,  to  seize  the  land  and 
hold  it  until  by  an  inquest  post  mortem  the  identity  of  the  next 
heir  had  been  established.*  Precisely  this  course  was  followed 
by  the  Bishop  on  the  death  of  one  of  his  tenants-in-chief.^   In 

1  On  this  point  see  above,  pp.  25-27. 

2  In  a  well-known  charter  of  the  twelfth  century  —  the  grant  of  Prior  Algar 
of  Durham  to  Dolfin  son  of  Ughtred  (1131)  —  occur  these  words,  "  praedictus 
vero  Dolfinus  pro  hac  concessione  quam  monachi  ei  concesserunt  deveni( 
homo  ligius  Sancti  Cuthberti  et  Prioris  et  monachorum,  salva  fidelitate 
Regis  Angh'ae  et  Regis  Scociae  et  Dunelm.  Episcopi  Domini  nostri" 
(Feodarium,  56).  This  coordination  of  the  Bishop  with  the  kings  of  Eng- 
land and  Scotland  is  full  of  significance  for  the  point  under  consideration. 

2  Pollock  and  Maitland,  i.  312. 
*  Ibid.,  292. 

^  "  Inquisitio  de  tenementis  quae  Rogerus  de  Esshe  tenuit,"  a.  d.  1312 
(Registrum,  i.  256).     There  is  a  regular  series  of  these  inquisitions  begin- 


56  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

like  manner,  in  the  question  of  wardships  no  one  might  compete 
with  the  king,  who,  if  a  man  held  of  him  in  chief,  was  entitled 
to  the  wardship  of  the  heir's  body  and  to  his  marriage,  no  matter 
how  many  other  lords  there  might  be.^  Here  also  the  Bishop 
was  prerogative.  In  1302  the  people  of  the  palatinate,  petition- 
ing the  king  for  remedy  against  the  oppressions  of  their  Bishop, 
represented  that,  although  it  was  provided  by  Magna  Carta 
that  no  chief  lord  should  have  the  wardship  of  any  one  who  did 
not  hold  of  him  by  knight  service,  the  officers  of  the  Bishop 
nevertheless  took  into  wardship  lands  which  were  not  so  held  of 
him.  To  this  the  Bishop  replied  that  his  prerogative  entitled 
him  to  such  wardships  between  Tyne  and  Tees,  just  as  the  king 
had  them  elsewhere  in  England :  "  and  the  king  to  the  honour 
of  God  and  S.  Cuthbert,  did  grant  that  the  Bishop  had  the  same, 
just  as  he  himself  has  it  elsewhere  in  England."^  In  1369  an 
attempt  was  made  to  defraud  the  Bishop  of  this  right  by  abduct- 
ing Thomas  Gray,  a  minor  then  in  the  Bishop's  custody  in  Nor- 
ham  Castle.  A  commission  of  oyer  and  terminer  to  inquire 
about  this  abduction  was  at  once  issued,  and  a  new  inquest  post 
mortem  was  directed  to  be  taken. ^ 

There  is  another  peculiarly  royal  attribute  of  this  right  of 
wardship.  The  custody  of  the  lands  of  idiots,  of  whatsoever 
lord  they  were  held,  belonged  in  England  to  the  king  and  in  the 
palatinate  to  the  Bishop.  Such  lands  were  held  in  wardship  on 
the  analogy  between  an  idiot  and  an  infant,  although  a  distinc- 
tion was  taken  between  the  idiot,  or  born  fool,  and  the  lunatic, 
who  might  expect  recovery  or  at  least  lucid  intervals.  The 
strict  application  of  feudal  law  would  by  this  analogy  throw  the 
custody  of  the  idiot's  lands  into  the  hands  of  his  lord,  and  this 
was  the  practice  in  England  and  Scotland  up  to  the  close  of 
Henry  Ill's  reign.     At  that  time  the  rule  was  changed  in  Eng- 

ning  with  the  accession  of  Bishop  Hatfield  in  1345.  Most  of  them  have 
been  calendared,  and  may  be  consulted  in  the  appendices  of  the  Deputy- 
Keepers'  Reports,  beginning  with  Report  No.  xliii. 

1  Pollock  and  Maitland,  i.  302. 

2  Registrum,  iii.  41,  62. 

^  See  the  originals  of  these  documents  in  a  Durham  chancery  file,  Cursi- 
tor  154,  Nos.  40,  41.  For  some  information  about  the  ward,  see  Raine, 
North  Durham,  327. 


§  6]  THE  BISHOP'S  REGALITY  IN  DOMINIO.  57 

land,  and  the  king  became  the  sole  guardian  of  the  lands  of  per- 
sons born  insane.^  This  change  extended  to  the  palatinate.  In 
13 14  there  is  recorded  the  complaint  of  Richard,  son  of  Walter 
of  Hereford,  who  represented  to  the  king  that,  although  from 
his  birth  he  had  been  sane  and  of  good  memory,  the  lands  and 
tenements  which  he  was  holding  in  Durham  had  been  seized  by 
the  Bishop  on  the  ground  that  he  was  an  idiot.^  Again,  in  1393, 
Margaret  de  Alaynssheles  was  examined  in  the  palatine  chan- 
cery and  pronounced  an  idiot;  whereupon  it  was  judged  that 
all  the  lands  and  tenements  which  she  held  in  the  palatinate 
should  be  taken  into  the  Bishop's  hand,  and  that  William  de 
Merly,  who  had  occupied  these  lands  since  the  death  of  Marga- 
ret's husband,  should  account  to  the  Bishop  for  the  issues  of 
them  during  the  time  of  his  occupation.^ 

When  persons  holding  of  a  mesne  lord  were  convicted  of 
felony  so  that  their  lands  escheated,  the  king  had  the  right  to 
hold  and  waste  these  lands  for  a  year  and  a  day.*  This  royal 
right  belonged  also  to  the  Bishop  in  the  palatinate.^  The 
Bishop's  royal  right  to  forfeitures  has  already  been  considered 
in  another  place.^  The  incidents  of  feudal  tenure  accruing  to 
the  Bishop  in  regular  course  need  not  be  noticed  here ;  they  do 
not  differ  from  those  of  any  other  great  English  feudatory,  and 
hence  for  details  the  reader  is  referred  to  the  ordinary  sources^ 

1  Pollock  and  Maitland,  i.  464. 

2  Registrum,  ii.  1024,  1025. 

8  Rot.  Skirlaw,  ann.  5,  m.  9,  curs.  33. 

*  Pollock  and  Maitland,  i.  332,  460. 

^  See  Le  Convenit,  in  Feodarium,  214.  This  arrangement  was  confirmed 
by  Bishop  Hatfield  in  1354  (Rot.  i.  Hatfield,  ann.  9,  m.  9,  curs.  30),  and  was 
still  in  force  in  1410  (see  a  letter  of  Bishop  Langley  relating  to  it,  Auditor  i, 
No.  2).  Cf.  also  the  sheriff's  account  for  1477-1478  (Auditor  i,  No.  6), 
which  shows  that  it  was  equally  effective  then. 

®  Above,  §  5. 

^  For  relief,  see  Registrum,  ii.  1151,  1209,  1214,  1215,  1244.  For  aids, 
see  Feodarium,  23,  30-31,  38,  41,  57,  64;  note  especially  p.  30,  "Et  quociens 
commune  auxilium  ponetur  per  totam  terram  Sancti  Cuthberti  idem  Gilbertus 
et  heredes  sui  dabunt  quantum  pertinet  ad  tantum  terrae  ;  "  and  compare  with 
Rot.  C.  Langley,  ann.  25,  m.  2,  curs.  36,  "per  servicium  .  .  .  reddendi  ad 
commune  auxilium  quando  ponitur  per  episcopatum  quinque  solidos."  For 
wardship  and  marriage,  see  Registrum,  ii.    1171,  1172,  1179,   ^215,   1259, 


58  THE  BISHOP  AS  LORD  PALATINE.         [Ch.  II. 

All  mines  of  gold  or  silver  in  England  belonged  to  the  king, 
in  order,  according  to  the  ex  post  facto  explanation  of  the  lawyers, 
to  afford  him  material  for  the  coinage  with  which  he  provided 
the  kingdom.^  In  respect  to  the  proprietorship  of  mines,  the 
privilege  of  the  Bishops  of  Durham  somewhat  exceeded  that  of 
their  royal  model,  for  they  seem  to  have  possessed  all  the  mines 
in  the  palatinate,  including  base  as  well  as  precious  metals  and 
coals.  In  the  case  of  gold  and  silver  they  had  the  pretext  of 
their  mint  at  Durham,  but  for  other  minerals  they  seem  to  have 
relied  on  the  general  principle  of  their  supreme  rights  in  domi- 
nio.  This  control  of  the  mines  was  a  fruitful  source  of  revenue, 
for  although  there  was  probably  no  appreciable  production  of  the 
precious  metals,  yet  coal,  iron,  and  lead  were  plentiful.  This 
subject,  though  full  of  interest,  needs  no  more  than  a  passing 
notice  here ;  it  will  be  considered  more  fully  in  another  chapter.^ 

The  right  of  the  king  to  royal  fish,  whales,  and  sturgeons  cast 
ashore  or  taken  near  the  coast  of  the  kingdom  is,  along  with  the 
right  to  wreck,  closely  connected  with  the  later  development  of 
admiralty  jurisdiction.  Both  of  these  rights  the  Bishop  pos- 
sessed from  a  period  at  least  as  early  as  the  beginning  of  the 
twelfth  century.^ 

In  like  manner  the  Bishop  was  entitled  to  treasure-trove,  or 
all  hidden  treasure  discovered  in  the  palatinate  ;  to  waif,  or  stolen 
goods  abandoned  by  the  thief ;  to  estray,  or  beasts  and  cattle 
for  which  no  owner  could  be  found  ;  and  to  deodand,  or  any  ob- 
ject that  had  been  the  proximate  cause  of  the  death  of  a  human 
being.* 

1260;  iii.  276,  277,  282,  347,  353,  361,  418.  For  escheat,  see  Ibid.,  ii.  1291. 
A  few  only  of  the  most  accessible  sources  have  been  indicated ;  much  infor- 
mation will  also  be  found  in  the  calendars  of  inquisitions  post  moi'tern 
(Deputy-Keepers'  Reports,  No.  xliii  ff.)  and  the  account  rolls  of  the 
sheriffs  and  receivers-general  (Auditor  i ;  Ecclesiastical  Commissioners, 
ministers'  accounts,  189696;  Auditor  5,  No.   149). 

1  Coke,  Second  Institute,  cap.  xx,  ^'j'j ;  Blackstone,  Commentaries,  book 
i.  cap.  viii. 

2  Below,  §  37.  2  See  below,  App.  ii. 

*  Fleta,  lib.  i.  cap.  xliii;  Coke,  Third  Institute,  132;  Dalton,  Office  of 
Sheriffs,  cap.  xvi ;  Blackstone,  Commentaries,  book  i.  cap.  viii ;  Pollock  and 
Maitland,  ii.  471-472.      In   connection  with   treasure-trove    and    deodand 


§6]  THE  BISHOP'S  REGALITY  IN  DOMINIO.  59 

The  Bishop's  royalty  in  respect  to  the  forests  —  always  a  sore 
subject  in  the  middle  ages  —  is  of  somewhat  late  development, 
for  the  time  of  its  maturity  lies  well  within  the  limits  of  legal 
memory.  Early  in  the  twelfth  century,  to  be  sure,  the  Bishop's 
rights  in  the  forests  of  the  palatinate  seem  to  have  excluded  all 
but  those  of  the  king.  There  is  an  undated  charter  of  Henry  I 
which  recites  that  Bishop  Ranulf  Flambard  (who  died  in  1128), 
having  disproved  the  claims  of  the  men  of  Northumberland  with 
regard  to  the  forests  of  S.  Cuthbert  between  Tyne  and  Tees, 
shall  hold  and  enjoy  these  forests  for  himself  and  his  successors 
freely  and  quietly.  The  Northumbrians  had  laid  claim  to  a 
right  of  hunting  in  S.  Cuthbert's  forests  and  of  taking  firewood 
and  timber  from  them  on  payment  of  a  certain  sum.^    In  Bishop 

there  are  two  curious  stories,  the  first  of  which  comes  from  the  second  half 
of  the  twelfth  century.  Christian,  a  moneyer,  who  leased  certain  mines  of 
the  Bishop,  got  hold  of  a  man  {quemdam  miserum)  who,  according  to  rumor, 
had  found  a  treasure.  Christian,  finding  it  impossible  to  get  anything  from 
him,  confided  in  the  sheriff  and  the  subvicar  of  the  Bishop.  The  reason 
given  for  this  step  is  remarkable  :  "  Nam  celari  talis  mancipatio  torturae 
diutiusque  latere  non  poterat ;  et  detecta  ejus  audacia  magis  jacturae  dis- 
pendium  quam  alicujus  lucri  emolumentum  ei  adjicere  praevalebat.  Nam  et 
regiae  dignitas  potestatis  in  urbe  ilia  erat  potentiaria  Episcopalis  possessio 
dicionis.  Unde  nee  abditum  tenere  potuit  tantae  lucrum  adquisitionis,  quae 
tam  regiae  quam  Episcopalis  esse  debuerant  dignitatis."  The  sheriff,  hop- 
ing for  great  gain,  confined  the  man  in  the  Bishop's  prison,  from  which  he 
was  duly  delivered  by  S.  Cuthbert.  (Reginaldus  Dunelmensis,  Libellus,  Sur- 
tees  Soc,  cap.  xcv,  210  ff.)  The  second  incident  occurred  in  one  of  Edward 
I's  expeditions  against  Scotland.  It  happened  that,  as  the  king  was  passing 
through  the  palatinate,  John  de  Corbyn,  one  of  his  retainers,  was  pressed  to 
death  by  a  horse  (either  the  king's  or  his  own),  which  was  promptly  seized 
as  deodand  by  the  Bishop's  ofiicers.  Graystanes  records  the  event  in  these 
words :  "  Erat  tanta  libertas  ecclesiae  Dunelmensis  .  .  .  quod  Episcopus 
habuit  palefridum  Regis  tendentis  versus  Scotiam  pro  eschaeto,  eo  quod 
minister  de  eo  incaute  cecidit  et  ex  casu  obiit "  (cap.  xxx,  in  Scriptores  Tres, 
89).  See  also  the  letter  of  the  king  asking  for  the  return  of  this  horse  as  a 
personal  favor  (^pur  lamur  de  nous)  ;  in  this  letter  the  horse  is  said  to  have 
been  "seisi  .  .  .  come  forfait  ou  deodande  "  (Registrum,  iv.  App.  513,  514). 
These  matters  appear  from  time  to  time  on  the  palatine  account  rolls  (see 
Auditor  i,  Nos.  i,  2;  Ecclesiastical  Commissioners,  ministers'  accounts, 
189696). 

^  Scriptores  Tres,  App.  No.  xxv.     This  document  is  also  printed  in  Sur- 
tees,  Durham,  i.  pp.  cxxv,  cxxvi. 


6o  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

Pudsey's  survey  of  the  palatinate  in  1183  a  good  deal  is  said  of 
the  magna  caza,  the  great  autumn  battue  in  the  Weardale, 
which,  from  its  close  connection  with  tenures  in  that  district, 
must  have  been  of  considerable  antiquity.^  But  the  king's  rights 
seem  still  to  have  persisted  in  some  degree  over  these  north- 
ern forests.  Accordingly  in  1234  the  lords  and  freemen  between 
Ouse  and  Derwent  paid  him  a  great  sum  of  money  to  renounce 
his  claims  and  disafforest  the  land  between  these  two  rivers.  In 
the  charter  which  issued  on  this  subject,  however,  there  is  a  saving 
clause  for  the  previous  rights  of  the  Bishop  of  Durham,  which 
are  recognized  as  superior  to  those  of  his  co-petitioners.^  From 
this  time  onward  the  Bishop  seems  to  have  enjoyed  an  unques- 
tioned supremacy  over  the  forests  of  the  palatinate,  and,  in  imi- 
tation of  his  royal  model,  even  to  have  pushed  it  rather  beyond 
the  endurance  of  his  subjects  ;  for  in  1302  they  complain  of  the 
extortions  and  illegal  practices  of  the  forest  officers  and  the  limi- 
tations on  their  freedom  of  taking  game  and  the  like,  but  with- 
out obtaining  many  concessions  from  the  Bishop.^  The  Bishops 
continued  to  appoint  officers  and  administer  the  forests  accord- 
ing to  their  good  pleasure,  on  the  assumption  of  their  entire 
supremacy  in  this  respect.* 

^  Boldon  Book,  26,  29. 

2  "  Carta  de  foresta  inter  Usam  et  Derewent"  (Registrum,  ii.  1183).  In 
the  statement  of  the  usages  of  the  forest  which  follows  this,  it  is  said  that 
"le  pais  fu  desaforeste  par  graunt  raunson  que  le  pais  dona  al  roi."  Those 
who  paid  this  sum  were  the  Bishop  of  Durham,  the  archbishop  of  York,  the 
abbot  of  S.  Mary  of  York,  and  the  earls,  barons,  knights,  freemen,  and  all 
others,  lay  and  cleric,  having  lands  between  Ouse  and  Derwent  in  Yorkshire. 
The  Ouse  and  Derwent  include  the  greater  part  of  the  palatinate;  but  for 
this  the  Bishop  paid  alone,  receiving  in  return  the  following  safeguard  of 
liberties :  "  Salvis  tamen  praedicto  R.  episcopo  et  ecclesiae  Dunolmensibus 
et  successoribus  suis  libertatibus  et  liberis  consuetudinibus  eis  ante  hanc 
concessionem  nostram  concessis  per  praedecessores  nostros,  reges  Angliae ; 
ita  videlicet  quod  per  hanc  libertatem  nostram  praedictis  .  .  .  concessam, 
nullum  fiat  vel  fieri  possit  praejudicium  dicto  episcopo  et  ecclesiae  Dunol- 
mensibus, de  libertatibus  suis  eis  prius  concessis  inter  Usam  et  Derewent 
a  praedecessoribus  nostris  regibus  Angliae  "  (Ibid.,  11 85). 

8  Ibid.,  iii.  41-46,  61-67. 

^  In  1312  William  de  Brakenbury  receives  the  "  custodiam  forestarum, 
chaceorum,  boscorum,  et  parcorum  nostrorum,  infra  libertatem  nostram 
Dunelmensem,  una  cum  dilecto  nobis  Johanne  Baudre  juniore  faciendo  id 


§  6]  THE  BISHOP'S  REGALITY  IN  DOMINIO.  6l 

Here  again,  then,  is  an  example  of  the  deliberate  growth  of 
the  Bishop's  regality,  which,  bit  by  bit,  had  completed  itself 
toward  the  close  of  the  thirteenth  century,  very  much  as  that 
of  the  English  crown  had  done  long  before.  Brae  ton,  writing  of 
the  lesser  regalities  of  waif,  stray,  deodand,  and  the  like,  says : 
**  [Haec]  quae  olim  fuerunt  inventoris  de  jure  naturali,  jam 
efficiuntur  principis  de  jure  gentium;"^  the  implication  is 
that  these  things  are  ascribed  to  the  prince  for  his  regality. 
As  applied  to  the  crown  of  England  this  may  be  a  lawyer's 
explanation  of  an  inconvenient  .historical  problem,  or  a  mere 
borrowing  from  the  civilians;  that  question  does  not  concern 
us  here.  With  regard  to  the  Bishop's  regality,  on  the  other 
hand,  we  have  seen  enough  to  convince  us  that  these  privileges 
preceded  the  theoretical  rights  from  which  they  were  assumed 
to  be  derived.  They  are  contributories,  not  resultants,  the  signs 
of  forces  working  together  toward  completion  rather  than  the 
embellishment  of  a  regality  mature  from  its  birth. 

Many  of  these  privileges  which  have  been  occupying  our 
attention  might  be  alienated  by  the  Bishop  on  behalf  of  his 
subjects.  Thus,  in  131 1,  Bishop  Kellaw  granted  to  Hugh  de 
Louthre  and  his  heirs  forever  the  right  to  have  free  warren  in 
all  the  demesne  lands  of  the  manor  of  Thorpe  Theules  in  the 
palatinate,  in  so  far  as  such  lands  were  not  within  the  metes  and 
bounds  of  the  Bishop's  forest.  A  fine  of  ten  marks  was  imposed 
on  any  one  who  should  enter  the  district  so  privileged  for  the 
purpose  of  hunting  or  taking  game.^ 

quod  ad  forestarium  pertinet"  (Ibid.,  i.  114;  cf.  Graystanes,  cap.  xxiii,  in 
Scriptores  Tres,  ^d^  and  also  the  appointment  of  Sir  Thomas  Lumley  to  be 
chief  forester  in  Weardale,  as  recorded  in  a  privy  seal  addressed  to  the 
chancellor  for  the  issue  of  a  commission,  Cursitor  145).  On  some  of  the 
duties  of  the  forest  officers,  see  Rot.  i.  Hatfield,  ann.  12,  m.  11  dorse,  curs. 
30,  and  ann.  19,  m.  14;  Rot.  DD.  Langley,  9  Hen.  VI,  m.  3  dorse,  curs.  37. 
An  interesting  case,  decided  in  the  Bishop's  courts  in  1365,  established  the 
right  of  an  under-forester  to  levy  certain  contributions  in  kind  from  every 
husband-land  in  the  vill  of  Urpath.  The  whole  record  of  the  affair  is  pre- 
served in  one  of  the  few  chancery  files  remaining  among  the  Durham 
records  (Cursitor  162,  Nos.  34-39). 

1  Bracton,  fol.  8  b,  i.  60-62. 

2  Registrum,  ii.  11 36-1 137.  For  a  similar  grant  to  William  de  Daldene, 
see  Rot.  i.  Hatfield,  ann.  9,  m.  9  dorse,  curs.  30. 


62  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  11. 

The  Bishop  might  also  erect  fairs  and  markets,  a  privilege 
which,  outside  the  palatinate,  could  be  claimed  only  by  prescrip- 
tion or  royal  grant. ^  Thus,  in  1312,  Bishop  Kellaw,  for  the 
perpetual  convenience  of  himself  and  his  successors,  and  for 
the  advantage  of  the  royal  liberty  at  large  and  in  particular  of 
the  people  of  his  vill  of  Seggefield,  erected  there  a  weekly 
market  and  an  annual  fair  of  five  days'  duration,  retaining  to 
himself  and  his  successors  the  profits  of  the  fair.^  Again,  in 
1379  Bishop  Hatfield  granted  that  John  de  Nevill,  lord  of  Raby, 
and  his  heirs  should  hold  a  weekly  market  and  an  annual  fair  in 
July  at  his  vill  of  Staindrop  within  the  royal  liberty  of  Durham, 
under  condition  that  this  privilege  should  not  react  to  the  preju- 
dice of  the  surrounding  vills  having  fairs  or  markets,  or  to  that 
of  the  church  of  Durham.^  The  saving  clause  is  worth  noting: 
it  would  have  been  illegal  to  establish  a  market  at  a  distance  less 
than  six  miles  and  two  thirds  from  one  already  existing,^  and 
furthermore  the  really  important  September  fair,  at  which  winter 
stores  might  be  laid  in,  the  Bishop  retained  in  his  own  hand  until 
it  was  made  over  to  the  corporation  of  Durham  by  Bishop 
Pilkington  in  1565.^ 

In  like  manner  the  Bishop  alienated  his  right  of  wreck.  Thus, 
in  1432,  Bishop  Nevill  granted  to  Sir  Thomas  Lumley  and  Mar- 

1  See  Ashley,  Economic  History,  i.  98 ;  and  cf.  the  following  clause  from 
a  charter  granted  by  Bertram,  prior  of  Durham,  A.  d.  i  189-1209,  to  his 
burgesses  of  Elvet:  "Si  vero  nos,  per  graciam  et  licenciam  Domini  nostri 
Episcopi,  forum  vel  nundinas  in  eodem  burgo  poterimus  adipisci,"  etc. 
(Feodarium,  199).  In  1228  one  of  the  witnesses  who  testified  in  the  quarrel 
between  the  Bishop  and  the  prior  said  :  "  Quod  nullus  habet  theoloneum  nisi 
Episcopus,  quia  nullus  habet  mercatum  sive  nundinas  in  Haliwarifolc  nisi 
ille  (Ibid.,  235)  ;  indeed,  this  sentiment  occurs  repeatedly  (see  Ibid.,  230,  237, 
240,  et  passim).  On  the  great  fair  of  S.  Cuthbert  in  September,  see  Boldon 
Book,  4,  26. 

2  Registrum,  ii.  11 80. 

3  Rot.  ii.  Hatfield,  ann.  34,  m.  11,  curs.  31. 

^  Bracton,  cited  by  Ashley,  Economic  History,  i.  99. 

^  See  Reginaldus  Dunelmensis,  Vita  S.  Godrici  (Surtees  Soc),  101,408; 
Scriptores  Tres,  App.  No.  cccxxxii;  Surtees,  Durham,  iv.  pt.  ii.  14.  Some 
material  on  this  subject  will  be  found  in  the  Durham  ministers'  accounts, 
e.  g.  "In  expensis  factis  circa  custodiam  nundinarum  apud  Derlington" 
(sheriff's  account,  a.  d.  1336,  Auditor  i,  No.  i). 


§  6]  THE  BISHOP  'S  REGALITY  IN  DOMINIO.  63 

garet  his  wife  everything  cast  ashore  by  the  tide  in  their  demesnes 
in  Stranton  and  Seaton  Carrowe,  in  the  royal  liberty  of  Durham. 
For  this  they  paid  an  annual  rent  of  three  shillings,  and  agreed 
to  surrender  to  the  Bishop  one  half  of  any  royal  fish  or  great 
ships  that  might  be  cast  ashore.^ 

It  has  been  said  that  one  of  the  attributes  of  the  Bishop's 
royalty,  under  the  category  of  dominium^  was  the  existence  of 
baronies  which  originated  in  tenure  of  him.^  Something  of  this 
sort  was  unquestionably  true,  but  before  generalizing  it  will  be 
well  to  examine  the  evidence  on  which  these  statements  rest. 
The  earliest  information  comes  from  the  troubled  period  of 
Stephen's  reign.  After  the  death  of  Bishop  Geoffrey  Rufus  in 
1 140,  David,  king  of  Scotland,  in  the  interest  of  his  niece,  the 
empress,  and  with  a  view  to  the  extension  of  his  own  border,  made 
a  bold  and  ingenious  effort  to  control  the  bishopric  by  forcing  the 
election  of  William  Cumin,  his  own  tool  and  a  favorite  of  the  late 
Bishop.  Cumin  had  already  obtained  practical  possession  of  the 
temporalities,  and  in  all  probability  the  plot  would  have  succeeded 
but  for  the  determined  resistance  of  a  certain  Roger  de  Conyers, 
who  is  described  as  one  of  the  barons  of  the  bishopric.^  Cumin, 
it  is  said,  conducted  himself  as  though  already  Bishop,  granting 
out  lands  and  receiving  the  homage  of  all  the  barons  except  of 
Roger  de  Conyers  alone.*  Later,  when  the  canonically  elected 
Bishop  presented  himself,  he  was  invited  by  Conyers  to  enter  the 
bishopric,  and  on  his  arrival  a  few  of  the  barons  of  the  bishopric 
and  others  came  to  do  him  homage.^  A  plot  to  advance  the 
interests  of  Cumin  was  arranged  with  the  aid  of  Aschetinus  de 
Wirece,  one  of  the  Bishop's  barons;^  but  this  treachery  was 

1  Rot.  iv.  Nevill,  ann.  19,  m.  8,  curs.  45;  see  below,  App.  ii. 

2  Spearman,  Inquiry,  15;  Registrum,  iii.  Introd.  xlv-xlvi ;  Stubbs,  i.  412, 
note.  Whitelocke  (in  his  reading  on  21  Hen.  VIII,  cap.  xiii)  commits  him- 
self to  the  hazardous  statement  that  the  Bishop  might  create  baronies  by 
tenure.  See  The  Practice  of  the  Court  of  Chancery  of  Durham,  1-7 ;  but  see 
also  Stubbs,  ii.  194  £f.,  and  below,  p.  ^. 

8  For  this  whole  story,  see  Symeon,  i.  1 46-1 61,  and  the  Poems  of  Law- 
rence of  Durham  (Surtees  Soc). 
■*  Symeon,  i.  146,  150. 
6  Ibid.,  i.  150-151. 
6  Ibid.,  156,  158. 


64  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

frustrated  by  the  vigorous  loyalty  of  Roger  Conyers,  Geoffrey 
Escolland,  and  Bertram  de  Bulmer,  also  episcopal  barons,^  and 
the  terms  of  a  truce  made  with  the  intruder  were  arranged  under 
the  approval  and  guarantee  of  all  the  barons  of  the  bishopric.^ 
During  the  rest  of  the  twelfth  century  we  continue  to  hear  of 
barons,  proceres,  and  magnates  of  the  Bishop.^  From  this  evi- 
dence it  appears  that  the  great  tenants-in-chief  of  the  Bishop  and 
the  king  were  not,  in  the  twelfth  century,  clearly  differentiated. 
The  Bishop  had  his  barons,  who  owed  him  homage  and  fealty  as 
temporal  head  of  the  province,  and  could  even  feel  toward  him 
in  that  capacity  a  certain  loyalty. 

In  1 197,  the  see  being  then  vacant,  the  keeper  of  the  tempo- 
ralities accounted  at  the  exchequer  for  the  issues  of  the  baronies 
of  the  bishopric  to  the  number  of  ten.*  This  is  a  larger  number 
than  is  usually  given ;  the  ordinary  enumeration  is  four,  namely, 
the  prior  of  Durham,  Hilton  of  Hilton  Castle,  Bulmer  of  Brance- 
peth,  and  Conyers  of  Sockburne.^  These  are  certainly  the  most 
prominent  barons,  and  deserve  particular  attention.  The  prior 
was  no  doubt  the  greatest  tenant  of  the  Bishop  ;  his  holdings 
and  his  extensive  feudal  jurisdiction  may  be  judged  from  the 
great  feodary  of  Durham.^  In  1295  he  was  summoned  to  parlia- 
ment for  the  first  time,"  and  afterward  frequently  received  sum- 
monses under  the  praemunientes  clause  in  the  writ  addressed  to 
the  Bishop.^  The  family  of  Hilton  had  their  chief  seat  at  Hilton 
Castle  in  the  palatinate,  and  were  reckoned  titular  barons  by 
tenure-in-chief  of  the  Bishop.^  In  1180  Alexander  de  Hilton 
witnesses  a  conveyance   in  presence   "  of  the   barons  of  the 

1  Symeon,  i.  158.  ^  Ibid.,  155. 

3  Reginaldus  Dunelmensis,  Libellus,  cap.  xciii,  206 ;  see  also  his  Vita  S. 
Godrici  (Surtees  Soc),  178,  217,  and  a  charter  of  Bishop  Pudsey,  in  Surtees, 
Durham,  iii.  339. 

*  Pipe  Roll,  8  Ric.  I,  in  Boldon  Book,  App.  xi-xii. 

^  Spearman,  Inquiry,  15. 

^  Feodarium  Prioratus  Dunelmensis  (Surtees  Soc.)« 

'  Parliamentary  Writs,  i.  28. 

8  Regi strum,  index,  s.  v.  "  Parliament ; "  Parliamentary  Writs,  indexes, 
s.  V.  "  Durham  ; "  and  cf .  Stubbs,  Select  Charters,  485. 

9  Sir  T.  C.  Banks,  Baronia  Anglica  Concentrata  (ed.  1844),  i.  251-253; 
Surtees,  Durham,  ii.  36;  Stubbs,  i.  393  note. 


§  6]  THE  BISHOP'S  REGALITY  IN  DOMINIO.  65 

bishopric,"^  and  again  in  1 185.2  In  1294,  1295,  and  1296  a 
Robert  de  Hilton  was  summoned  to  parliament,^  and  this  is  no 
doubt  the  same  Robert  who  in  13 13  appears  as  "  dominus  villae 
de  Hilton  ;  "  *  but  he  is  not  again  summoned  to  parliament.  From 
1332  until  1336  an  Alexander  de  Hilton  is  summoned,  but  not 
again.^  After  this  no  Hilton  is  called,  although  one  of  that  name 
seems  to  have  sat  in  1399.^  The  barons  of  Hilton  continue  to  be 
heard  of  in  Durham  as  late  as  1539." 

Bertram  de  Bulmer  was  a  "  baro  episcopi"  in  1144,^  but  in 
1 162  the  Bulmers  are  described  as  barons  by  tenure  of  the  king.^ 
In  Edward  I's  reign  they  certainly  owed  to  the  crown  the  ser- 
vices of  tenants-in-chief, ^^  but  we  resummoned  to  parliament  first 
in  1327  and  last  in  1349.^^  Banks  describes  them  as  "reputed 
barons  of  the  county  of  Northumberland."  ^^  ^he  existence,  in 
the  twelfth  century  at  least,  of  the  barony  of  Conyers  of  Sock- 
burne  is  evident  enough  from  the  words  of  Symeon  already 
quoted.^3  The  manor  of  Sockburne  was  held  of  the  Bishops  by 
the  peculiar  and  probably  very  ancient  service  of  meeting  the 
new  Bishop  on  his  first  entrance  into  his  diocese  on  a  bridge  over 
the  river  Tees,  and  there  presenting  him  with  a  "faulchion." 
A  ritual  phrase  accompanying  this  ceremony  describes  the 
faulchion  as  the  weapon  with  which  the  first  Conyers  slew  a 
"worm,  dragon,  or  fiery  flying  serpent,"  for  which  exploit  he 

1  The  document  is  printed  in  a  condensed  form  in  Feodarium,  20 ;  see 
also  Surtees,  Durham,  ii.  36.  See  another  charter  witnessed  by  this  Hilton, 
in  which  land  is  granted  to  be  held  "  sicut  aliquis  .  .  .  tenet  in  Episcopatu 
Dunelm.  de  aliquo  barone:"  Feodarium,  124. 

2  Feodarium,  142. 

8  Dugdale,  Perfect  Copy  of  all  Summons  of  the  Nobility  ...  to  Parlia- 
ments, 9,  14,  19. 

^  Registrum,  ii.  1229. 

^  Dugdale,  Summons,  175,  176,  179,  182. 

«  Rot.  Pari.,  I  Hen.  IV,  iii.  427. 

■^  Rentale  Bursarii  [of  the  Convent],  in  Feodarium,  307. 

^  Symeon,  i.  158. 

*  Nicolas,  Historic  Peerage,  82. 
i<>  Parliamentary  Writs,  i.  505. 
^1  Dugdale,  Summons,  index,  s.  v.  "  Bulmer." 
^2  Baronia  Anglica,  i.  140. 
^5  Above,  pp.  63-64. 

5 


ee  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

was  rewarded  with  the  manor  of  Sockburne.  This  picturesque 
ceremony,  which  survived  until  1771/  perhaps  veiled  some  par- 
ticularity in  the  tenure  of  Sockburne,  which,  if  more  were  known, 
might  be  connected  with  the  twelfth  century  baronage,  and  with 
a  queer  story  of  "  an  old  pedigree "  relating  to  the  *'  erles  of 
Socburn  in  the  Bishopric  "  known  to  Surtees.^  However  that 
may  be,  the  Conyers  of  Sockburne  were  never  summoned  to 
parliament,  and  their  barony  is  unknown  in  the  peerages. 

From  this  collection  of  facts  several  conclusions  are  at  once 
apparent.  In  the  first  place,  it  is  clear  why  these  four  barons 
were  prominent  in  the  palatinate.  The  prior  of  Durham  was  in 
his  spiritual  relations  like  any  other  prior  of  the  kingdom  ;  by 
virtue  of  his  office  he  was  summoned  to  parliament,  and  he  held 
estates  which,  economically  at  least,  answered  to  the  requirements 
of  a  barony.  Bulmer  and  Hilton  had  both  been  summoned  to 
parliament,  but  the  title  of  Conyers  rested  on  the  prominence 
given  by  the  monkish  historians  to  the  name  and  achievements 
of  the  founder  of  his  family. 

It  remains  to  speak  of  the  barons  mentioned  in  the  pipe  roll 
of  1 1 97  and  in  other  sources.  Take,  for  example,  the  barony  of 
Evenwood,  which  was  held  by  the  Hansards.  Gilbert  Hansard 
held  a  barony  in  1 197 ;  ^  he  constantly  appears  in  the  test  clauses 
of  Bishop  Pudsey's  charters.*  In  1294  we  hear  of  Sir  John  Han- 
sard, lord  of  Evenwood,  who  sold  the  barony  to  Bishop  Bek,^ 
although  the  estate  continued  to  be  known  as  the  barony  of 
Evenwood.^  There  is  something  therefore  to  give  rise  to  the 
title  of  baron  beyond  a  summons  to  parliament,  when  in  process 
of  time  that  extends  to  the  palatinate.  The  question  then  arises, 
was  tenure-in-chief  of  the  Bishop  enough  to  secure  this  dis- 
tinction? Probably  although  indispensable  it  was  not  alone 
sufficient.  The  determining  factor  in  barony  by  tenure  appears 
to  have  been  not  tenure-in-chief  of  the  king,  but  the  relative  size 
and  importance  of  the  estates  thus  held,  and  the  fact  that  the 

1  Surtees,  Durham,  iii.  243  ff.  «  Ibid.,  ii.  209  note. 

3  Pipe  Roll  8  Ric.  I,  in  Boldon  Book,  App.  xii. 

*  Feodarium,  index,  s.  v.  "Hansard." 

^  Graystanes,  cap.  xxxi,  in  Scriptores  Tres,  90;  Registrum,  iii.  69. 

^  Registrum,  ii.  1204,  1205,  121 3. 


§  6]  THE  BISHOP  'S  REGALITY  IN  DOMINIO.  6/ 

holder  dealt  directly  with  the  exchequer  and  not  through  the 
medium  of  the  sheriff.^  The  dignity,  therefore,  would  seem  to 
proceed  rather  from  the  nature  of  the  estate  than  from  the 
king's  royalty. 

Now,  a  certain  number  of  persons,  holding  in  chief  of  the 
Bishop  in  the  palatinate,  would  no  doubt  correspond  feudally, 
or  socially  and  economically,  to  the  majores  barones  holding  of 
the  king  in  Yorkshire  or  Northumberland.  Their  tenure,  as  we 
know,  had  all  the  distinguishing  characteristics  of  tenure-in- 
chief.  The  tenants,  moreover,  dealt  directly  with  the  local 
exchequer ;  this  indeed  must  be  assumed  from  the  fact  that  they 
did  not  deal  through  the  sheriff  when  the  see  was  vacant,  for  the 
palatine  exchequer  records  have  for  the  most  part  perished. 
Again,  the  very  term  baro  was  of  extremely  elastic  significance, 
and  it  would  be  strange  indeed  if  it  had  not  been  applied  to  men 
like  Roger  Conyers.  Finally,  when  the  practice  of  summons  to 
parliament  begins  to  define  and  restrict  the  title,  there  is  a  kind 
of  recognition  of  the  social  or  aristocratic  claim  to  its  use  made 
by  the  representatives  of  such  families  as  Hilton  and  Bulmer,  in 
the  inconsistent  and  arbitrary  summonses  occasionally  addressed 
to  them.  Bulmer,  for  example,  who  possessed  lands  in  North- 
umberland, was  summoned  for  feudal  service  in  1295,  but  was 
not  called  to  parliament  until  1327,  and  ceased  to  receive  sum- 
mons to  that  body  in  1349.  It  is  not  fantastic  to  suppose  that 
the  military  duty  was  exacted  by  reason  of  estates  in  the  king- 
dom insufficient  in  themselves  to  place  him  in  the  rank  of  the 
majores  barones,  but  that  his  claim  to  that  dignity  was  justified 
by  his  possessions  in  the  palatinate. 

It  is  not  admissible,  then,  that  this  baronage  proceeded  out 
of  the  Bishop's  regality.  Rather,  as  the  liberties  and  franchises 
of  the  Bishop  grew  and  increased,  the  status  of  his  tenants-in- 
chief  advanced /^n/^j^?/,  so  that  they  finally  became  indistin- 
guishable from  the  greater  tenants  of  the  king;  and  this  social 
and  economic  condition  received  a  semi-official  recognition  by 
the  occasional  summons  to  parliament  of  one  or  other  of  the 
episcopal  barons,  who  thus  contributed  to  the  regal  position  of 
the  Bishop. 

1  Pike,  House  of  Lords,  89-95. 


68  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

§  7.    The  Bishop's  Regality  in  Jurisdictione. 

In  view  of  the  fact  that  the  Bishop  was  supreme  in  juris- 
dictione in  the  palatinate,  the  question  arises,  what,  within  his 
province,  were  his  relations  to  the  law  ?  Now,  the  king  in  Eng- 
land was  under  the  law,  although  its  machinery  might  not  be 
set  in  motion  against  him.  In  a  certain  sense,  again,  he  stood 
outside  the  law,  since  he  might  by  his  grace  prevent  its  conse- 
quences, and  by  his  prerogative  altogether  suspend  certain  of  its 
conditions.^  These  principles,  mutatis  mutandis,  apply  to  the 
Bishop  in  his  palatinate.  Thus  no  action  lay  against  the  Bishop 
in  his  own  courts ;  if  a  person  sought  remedy  against  him  he 
was  obliged  to  proceed  by  way  of  petition  to  the  Bishop  and 
his  council.  Even  an  outsider,  who  wished  to  recover  land  in 
the  palatinate  of  which  the  Bishop  was  the  adverse  holder, 
would  find  it  more  prudent  and  probably  more  effectual  to  follow 
this  course.^ 

In  respect  to  the  privilege  of  preventing  the  consequences  of 
the  law  by  means  of  a  pardon,  the  analogy  between  the  Bishop 
and  the  king  is  practically  complete.  The  power  to  pardon  an 
approver  —  that  is  to  say,  a  convicted  criminal,  who  for  the  sake 
of  obtaining  his  pardon  would  agree  to  rid  the  world  of  some 
half-dozen  of  his  associates  by  his  appeals  ^ —  was  a  privilege  con- 
fined to  the  king  and  lords  palatine,*  and  was  therefore  exercised 
by  the  Bishop.^  The  most  important  pardons,  however,  are 
those  for  killing.  These  may  be  divided  into  two  classes,  the 
first  including  pardons  granted  to  persons  who  have  committed 
manslaughter  in  self-defence  or  by  misadventure,  and  the  second 
those  granted  to  ordinary  homicides,  for  some  special  reason  in- 
dicated in  the  pardon.  With  regard  to  the  first  class,  it  should 
be  noticed  that  the  law  of  England  in  the  middle  ages  was 
unable  of  itself  to  prevent  the  punishment  of  an  innocent  or  ex- 
cusable manslayer.     Such  an  offender  needed  the  special  grace 

1  Pollock  and  Maitland,  i.  500-502. 

2  This  whole  question  is  worked  out  in  some  detail  below,  §  33. 
^  Pollock  and  Maitland,  ii.  631. 

*  Bracton,  fol.  122  b,  ii.  290. 

^  Le  Convenit,  in  Feodarium,  215;  see  also  Registrum,  iii.  79, 


§  7]      THE   BISHOP  'S  REGALITY  IN  JURISDICTIONE.       69 

of  the  king ;  ^  within  the  borders  of  the  palatinate,  however,  this 
grace  flowed  not  from  the  king  but  from  the  Bishop.  In  these 
cases  the  manner  of  the  crime  was  generally  stated  as  reported 
by  the  justices,  and  the  words  of  felony,  or  suggestion  of  malice 
aforethought,  were  specifically  guarded  against.  Thus,  in  1339, 
Adam  de  Faustane  was  pardoned  in  these  words :  "  cum  per 
recordum  dilectorum  et  fidelium  nostrorum  domini  Rogeri  de 
Aisshe  et  Johannis  de  Menevill,  justiciariorum  nostrorum  ad 
gaolam  nostram  Dunelmi  deliberandam,  accepimus  quod  Ada 
de  Faustane  captus,  et  in  gaola  nostra  Dunelmi,  pro  morte 
Gilberti  Gilet  interfecti,  detentus,  interfecerit  praedictum  Gil- 
bertum  se  defendendo,  ita  quod  mortem  suam  aliter  evadere  non 
potuit,  et  non  per  feloniam,  aut  malitiam  excogitatam,"  etc. ; 
then  follow  the  words  of  pardon.^ 

Pardons  for  guilty  manslaughter  were  expressed  in  a  different 
form,  and  generally  contained  some  pretext,  as  the  pious  motive 
of  the  Bishop,  the  request  of  some  powerful  person,  or  the 
recommendation  of  the  justices.^  A  guilty  person  who  had 
obtained  a  pardon  from  the  king  would  naturally  wish  to  have 
it  made  effectual  in  the  palatinate,  particularly  if  he  held  land 
there.  This  end  was  accomplished  in  two  ways:  either  the 
king  gave  notice  to  the  Bishop  that  he  had  pardoned  the  crimes 
and  desired  the  Bishop  to  proclaim  this  fact,  or  else  the  guilty 
person  obtained  a  fresh  pardon  from  the  Bishop,  in  which  the 
king's  action  was  assigned  as  the  motive.  Thus,  in  13 14,  the 
king  directed  his  writ  to  the  Bishop,  announcing  that  inasmuch 
as  Robert  Spryng  had  by  royal  letters  patent  been  pardoned  for 
killing  John  Spryng  and  for  other  transgressions,  as  well  as  for 
any  outlawry  that  may  have  been  proclaimed  against  him,  the 
conditions  of  this  pardon  were  to  be  publicly  proclaimed  in  the 
palatinate  and  strictly  observed  there.*  On  the  other  hand,  in 
1340  the  Bishop  announced  that,  since  the  lord  king  moved  by 

1  Pollock  and  Maitland,  ii,  480  if. 

2  Registrum,  iii.  238-239.  For  similar  cases  see  Ibid.,  ii.  1171,  1258, 
iii.  23^240,  341-342,  346,  35o>  370-371-  The  last  of  these  cases  is  very 
curious  and  interesting. 

*  Ibid.,  iii.  281,  373 ;  Rot.  i.  Hatfield,  ann.  2,  m.  2  dorse,  curs.  30;  ann.  4, 
m.  I  dorse ;  ann. 9,  m.  9  dorse. 

*  Registrum,  ii.  1027. 


;0  THE  BISHOP  AS  LORD   PALATINE.  [Ch.  II. 

certain  causes  had  pardoned  William  de  Whestwyk,  who  had  com- 
mitted homicide,  he  moved  by  the  same  causes  also  pardoned 
William.^  The  form  of  such  a  document  deserves  attention.  It 
recites  that  A.  B.,  accused  of  a  certain  manslaughter  at  such 
a  time  and  place,  is  pardoned,  and  that  the  Bishop  remits  to  him 
the  suit  of  his  peace  which  belongs  to  him  for  that  crime,  /.  e. 
the  right  of  prosecution,  and  frees  him  from  any  outlawry  that 
may  have  been  declared  against  him  by  reason  of  the  crime,  on 
condition  that  he  shall  stand  to  right  in  the  Bishop's  court, 
if  any  one  wishes  to  speak  against  him,  and  shall  further  find 
security  for  his  future  good  behavior  toward  the  Bishop  and  his 
people.  This  document,  known  from  its  form  as  a  carta  pacis^ 
is  followed  by  a  formal  notice  of  the  pardon,  and  a  precept  to 
the  sheriff  to  make  public  proclamation  of  the  matter  at  the 
great  meeting  of  the  county  court.  ^  The  carta  pads  issued  out 
of  chancery  under  the  great  seal,  on  the  Bishop's  warrant  to  the 
chancellor  under  the  privy  seal.^ 

In  like  manner  the  Bishop  issued  pardons  to  outlaws  who 
surrendered  themselves,*  to  persons  guilty  of  felonies  and  rob- 
beries,^ or  of  insurrections,^  and  to  his  own  officers  for  escapes 
from  prison  ^  or  for  all  offences  committed  during  their  term 
of  office.^  These  do  not  differ  materially  from  the  types  that 
have  been  noticed,  and  hence  need  not  be  considered  farther. 
The  right  to  grant  pardons  in  the  palatinate  was  withdrawn 
from  the  Bishop  and  vested  in  the  crown  by  act  of  parliament 
in  1536.^ 

1  Registrum,  iii.  250.     For  a  similar  case  see  Ibid.,  ii.  1261. 

2  Ibid.,  iii.  346. 

8  See  a  number  of  these  warrants,  temp.  Langley,  in  a  bundle  of  miscel- 
laneous papers,  Cursitor  211,  Nos.  2,  4,  7,  etc. 

4  Registrum,  iv.  281  ;  Rot.  ii.  Hatfield,  ann.  34,  m.  11,  curs.  31,  and  ann. 
36,  m.  14;  Rot.  Fordham,  ann.  2,  m.  3,  curs.  32. 

^  Registrum,  iii.  417,  418;  Rot.  i.  Hatfield,  ann.  2,  m.  2  dorse,  curs.  30, 
and  ann.  9,  m.  9  dorse ;  Rot.  Fordham,  ann.  3,  m.  6,  curs.  32. 

^  Rot.  i.  Booth,  ann.  5,  m.  10,  curs.  48.  Eighteen  pardons  will  be  found 
on  this  membrane. 

'  Rot.  Fordham,  ann.  4,  m.  7,  curs.  32  (pardons  to  the  gaoler  for  escapes). 

8  Ibid.,  ann.  3,  m.  5  dorse  (to  John  de  Elvet,  for  all  offences  committed 
when  he  was  sub-sheriff  and  sub-escheator  of  Durham  and  Sadberg). 

^  27  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  555.     For  an  instance  of  a  royal 


§  7]      THE   BISHOP'S  REGALITY  IN  JURISDICTIONE.       ji 

The  Bishop,  like  the  king,  might  interfere  with  the  operation 
of  the  law  at  an  earlier  stage  of  procedure,  by  forbidding  the 
justices  to  give  judgment  by  default  when  the  absent  party  was 
engaged  on  his  service.  This  privilege  of  staying  procedure  is  a 
very  ancient  attribute  of  royalty  and  was  known  to  the  Salic 
law.^  In  1340  Bishop  Bury  directed  his  warrant  to  his  justices 
assigned  in  the  county  of  Durham,  notifying  them  that  William 
de  la  Pole,  against  whom  an  action  was  pending  before  them, 
being  in  the  Bishop's  service  on  the  day  appointed  for  hearing 
the  case,  should  not  for  this  absence  be  put  to  default.^  This,  of 
course,  is  to  be  compared  with  the  king's  warrant  to  his  justices, 
with  which  it  is  practically  identical,  and  must  not  be  confused 
with  the  essoin,  in  the  royal  courts,  for  service  of  the  feudal 
lord.^  By  the  exercise  of  a  similar  privilege  the  Bishop  granted 
to  various  persons  relief  from  the  duty  of  serving  on  juries  or 
assizes,  or  of  attending  the  sessions  of  the  county  court.  This 
favor  was  accorded  by  reason  of  the  great  age  of  the  beneficiary,* 
or  for  good  service  rendered  to  the  Bishop,^  or  for  pressing  occu- 
pation with  the  Bishop's  affairs.^ 

The  Bishop's  prerogative  in  respect  to  the  law  was  not  con- 
fined to  checking  its  operation  :  he  could  also,  under  certain  con- 
ditions, suspend  its  application.  It  was  within  the  terms  of  the 
king's  prerogative  to  allow  a  statute  to  become  inefficient  for  want 
of  administrative  activity ;  he  could  also  by  active  measures  in- 
terfere with  the  observance  of  laws  which  he  disliked,  and  he 
could  even  suspend  the  operations  of  a  statute."^  To  what  extent 
the  Bishop  may  have  exercised  the  negative  side  of  this  preroga- 

pardon  in  the  palatinate,  in  the  year  after  the  statute,  see  Rot.  ii.  Tunstall, 
ann.  28  Hen.  VIII,  m.  9  dorse,  curs.  78. 

1  Brunner,  Deutsche  Rechtsgeschichte,  ii.  336. 

2  Rot.  Bury,  ann.  10,  m.  14,  printed  in  Registrum,  iv.  282;  Rot.  i.  Hat- 
field, ann.  4,  m.  i  dorse,  curs.  30. 

8  Glanvill,  lib.  i.  cap.  viii ;  Bracton,  fol.  336  b,  v.  148. 

*  Registrum,  i.  276. 

^  "  Confirmacio  Johanni  de  Elvet  quod  non  ponetur  in  assisis  nee  jura- 
tis:  "  Scriptores  Tres,  App.  No.  cxvii. 

*  Rot.  ii.  Hatfield,  ann.  36,  m.  14  dorse,  curs.  31  ;  and  see  similar  cases  in 
Rot.  Fordham,  ann.  3,  m.  5  dorse,  curs.  32,  and  ann.  6,  m.  9. 

'  Stubbs,  ii.  632-634. 


72  THE  BISHOP  AS  LORD  PALATINE,  [Ch.  II. 

tive  is  not  certain,  for  the  matter  is  referred  to  only  in  the  pro- 
tests of  his  subjects.  Thus,  in  1205-1206,  a  man  complained 
that  the  Bishop  had  refused  to  carry  out  the  provisions  of  the 
grand  assize,  by  forcing  him  to  the  duel  when  he  had  put  him- 
self on  the  country  ;^  and  in  1302  the  communitas  of  Durham, 
petitioning  the  king  against  the  oppressions  of  its  Bishop,  in- 
stanced, among  other  things,  his  contraventions  of  Magna 
Carta.2 

On  the  positive  side  —  the  actual  suspension  of  statutes  — 
there  is  considerable  evidence  in  one  direction.  The  Bishop 
had  the  right  to  issue  licences  for  the  amortization  of  land, 
and  this  right  he  exercised  frequently  and  vi^ithout  question. 
Mortmain  licences  were  of  course  readily  obtainable  from  any 
feudal  lord,^  but  the  lords  could  only  bind  themselves  not  to 
take  advantage  of  the  provisions  of  the  statute,  and  could  not 
affect  the  rights  of  the  lord  next  above  them  in  the  feudal 
hierarchy.  Besides,  there  was  always  the  crown  as  ultimate 
sequestrator.*  When  the  king,  however,  issued  such  licences  he 
resorted  to  the  device  of  the  nojt  obstante^  a  clause  in  a  charter  or 
letter  patent  allowing  something  to  be  done,  any  statute  to  the 
contrary  notwithstanding.  Such  a  document  is  defined  as  a 
licence  from  the  king  to  do  a  thing  which  at  common  law  might 
lawfully  be  done,  but  which,  being  restrained  by  act  of  parlia- 
ment, cannot  be  done  without  such  licence.^  This  device,  it 
appears,  was  borrowed  from  the  practice  of  the  Roman  curia 
and  was  first  used  in  England  in  the  thirteenth  century,  where 
it  was  applied  to  statutes  that  tended  to  restrain  some  preroga- 
tive incident  to  the  person  of  the  king.^  In  the  palatinate  the 
Bishop  was  in  the  position  of  ultimate  sequestrator,  and  accord- 
ingly he  issued  licences  on  the  royal  model,  suspending  the  action 
of  the  statute  in  this  or  that  case.     The  difference  between  such 

1  Geoffrey  Fitz  Geoffrey's  case,  Curia  Regis,  8  John,  roll  36,  m.  13  (North- 
umb.)  ;  and  below,  App.  i. 

2  Registrum,  iii,  41. 

8  Pollock  and  Maitland,  i.  315. 
*  Stubbs,  ii.  122, 

^  Jacob,  Law  Dictionary,  s.  v.  "Non  obstante." 

«  Ibid.,  s.  V.  "  Dispensations  " ;  Bouvier,  Law  Dictionary,  s.  v.  "  Non 
obstante  "  and  "  Dispensations." 


§  7]      THE  BISHOP'S  REGALITY  IN  JURISDICTIONE.        73 

a  document  and  the  personal  engagement  of  a  feudal  lord  to 
forego  his  right  is  very  marked,  and  illustrates  well  the  distinc- 
tion that  must  be  taken  between  the  status  of  the  Bishop  as 
palatine  earl  and  that  of  the  other  feudal  lords  of  the  kingdom. 

The  actual  words  "  non  obstante "  seem  not  to  have  been 
essential;  indeed,  in  the  document  from  which  a  quotation  is 
made  below  they  are  replaced  by  a  circumlocution,  although  this 
method  is  unusual.  In  1344  Bishop  Bury  licensed  William  de 
Twysyle  to  amortize  certain  lands  in  the  palatinate  for  the  erec- 
tion of  a  chantry  in  the  parish  church  of  Norham.  None  of  these 
lands,  it  should  be  noticed,  were  held  immediately  of  the  Bishop. 
The  significant  words  are  as  follows:  "Noverit  universitas 
vestra,  quod,  licet  de  communi  consilio  regni  Angliae,  statutum 
sit  quod  non  liceat  viris  religiosis  ingredi  feodum  alicujus,  ita 
quod  ad  manum  mortuam  deveniat,  sine  licentia  domini  regis, 
et  capitalis  domini  de  quo  res  ilia  immediate  tenetur;  de 
gratia  tamen  nostra  speciali,  ex  regali  potestate  nostra,  conces- 
simus  et  licentiam  dedimus,  pro  nobis  et  successoribus  nostris 
quantum  in  nobis  est,  dilecto  nobis  Willelmo  de  Twysyl,  quod 
.  .  .  [here  follows  the  specification  of  the  lands  to  be  amortized, 
the  lords  of  whom  they  are  severally  held,  and  the  purposes  and 
conditions  of  the  chantry],  nolentes  quod  praedictus  Willelmus 
vel  haeredes  sui,  aut  praedictus  capellanus  aut  successores  sui, 
per  nos  vel  successores  nostros,  ratione  alicujus  statu ti  de  terris 
et  tenementis  ad  manum  mortuam  non  ponendis  editi,  inde 
occasionentur  in  aliquo  seu  graventur.  Salvis  tamen  capitali- 
bus  dominis  feodorum  illorum  servitiis  inde  debitis  et  con- 
suetis."^  This  is  strong  language  for  a  prelate  to  use  —  the 
terms  approximate  those  of  a  royal  licence  ^  —  scarcely  half  a 
century  after  the  passage  of  the  statute  of  mortmain.  There 
is  abundant  evidence,  however,  that  these  licences  were  con- 
stantly issued.^  Such  a  licence  would  of  course  be  a  source  of 
profit  to  the  Bishop;    indeed,  the  document  itself   sometimes 

1  Registrum,  iii.  368-369. 

2  Calendar  of  Patent  Rolls,  1377-1381,  p.  436. 

8  Registrum,  ii.  1230,  1238-1240,  1297-1298,  iii.  284-286;  Rot.  ii.  Hat- 
field, ann.  34,  m.  11,  m.  13  (Jer)^  curs.  31 ;  Rot.  Skirlaw,  ann.  4,  m.  8,  and 
ann.  5,  m.  9,  curs.  33. 


74  THE  BISHOP  AS  LORD  PALATINE.  [Ch.  II. 

mentions  the  fine  paid.  Thus  a  licence  issued  by  Bishop 
Skirlaw  in  1392,  opening  with  the  formula  already  quoted, 
proceeds  thus :  "  tamen  pro  quadraginta  solidos,  quos  dilectus 
nobis  in  Christo  Abbas  de  Gervaux  nobis  solvit,  concessimus," 
etc.i  The  amount  of  the  fine  was  determined  by  the  value  and 
tenure  of  the  land  to  be  amortized,  and  before  the  licence  was 
issued  these  were  ascertained  by  an  inquisition  ad  quod  damp- 
num  taken  by  the  Bishop's  escheator.^  Licences  obtained  from 
one  Bishop  probably  needed  confirmation  by  his  successor,  who 
for  this  purpose  would  make  an  inquest  to  assure  himself  that 
no  improper  advantage  had  been  taken.^  This  privilege  of  the 
Bishop,  by  which  he,  a  prelate,  is  clothed  with  authority  to  sus- 
pend a  statute  levelled  at  his  own  order,  constitutes  one  of  the 
many  grotesque  anomalies  that  were  the  inevitable  result  of  a 
status  so  complex. 

Having  considered  the  relation  of  the  Bishop  to  the  law,  we 
should  now  direct  our  attention  to  his  position  in  the  legal 
system  of  the  palatinate.  The  Bishop  was  said  to  have  "  omni- 
modam  justiciam  in  placitis  coronae  et  placitis  civilibus."  *  This 
was  obviously  the  case,  since  all  judicial  officers  in  the  palatinate 
took  their  sanction  from  the  Bishop's  appointment,  and  no  officers 
of  the  king  could  come  into  the  palatinate  in  the  execution  of 
their  office.  It  follows,  that  everything  done  in  the  palat- 
inate before  judges  other  than  those  of  the  Bishop  was  null,  as 
being  coram  non  judice.^    Further,  except  in  two  specific  cases, 

1  Rot.  Skirlaw,  ann.  5,  m.  9,  curs.  33. 

2  See  a  number  of  originals  —  writs,  findings  of  inquest,  etc.  —  in  a 
Durham  chancery  file,  Cursitor  154,  Nos.  16-17,  18-19,  42-43,  53-55,  57-60. 

2  Ibid.,  Nos.  26-27,  28-29.  The  writ  is  directed  to  the  escheator,*and 
the  characteristic  clause  runs  as  follows :  "  Nos  volentes  certis  de  causis 
certiorari  super  vero  valore  terrarum  et  tenementorum  praedictorum,  vobis 
mandamus  quod,"  etc. 

*  Sir  James  Whitelocke,  Reading  on  21  Hen.  VIII,  cap.  xiii,  in  The 
Practice  of  the  Court  of  Chancery  of  Durham,  1-7.  Cf .  also  Plac.  de  Quo 
War.,  604,  and  Rot.  Pari.,  9  Edw.  II,  i.  362-363. 

^  Cf.  Norfolk  to  Cromwell,  Calendar  of  Letters  and  Papers,  Henry  VIII, 
xii.  pt.  i.  No.  616:  "  There  have  been  this  day  indicted  [at  Durham],  though 
to  no  purpose,  quia  coram  non  judice,  thirteen  persons."  The  duke  of  Nor- 
folk's commission  did  not  include  the  palatinate. 


§8]  ESTIMATE   OF   THE  BISHOP'S  REGALITY.  y^ 

all  appeals  and  writs  of  error  lay  to  the  Bishop  only,^  a  circum- 
stance again  indicating  his  judicial  supremacy,  out  of  which  also 
he  supplemented  and  corrected  the  common  law  by  an  equi- 
table jurisdiction  in  chancery  and  by  an  admiralty  jurisdiction 
in  properly  constituted  courts.^  Finally,  he  determined  and 
regulated  the  relations  between  the  common  law  courts  and 
the  ecclesiastical  forum. ^  On  the  other  hand,  two  facts  must 
be  borne  in  mind :  first,  that  the  fulness  of  this  development 
was  not  attained  until  the  close  of  the  thirteenth  century,  and, 
second,  that  over  the  splendor  of  the  Bishop's  judicial  indepen- 
dence lay  always  the  shadow  of  the  crown  of  England.  The 
king  checked  and  limited  the  Bishop's  supremacy  both  in  the 
regular  course  of  law  —  that  is,  in  case  of  a  default  of  justice  on 
the  Bishop's  part  or  in  matters  touching  the  king's  person  —  and 
in  the  exercise  of  the  royal  prerogative.  This  whole  matter  is 
worked  out  in  another  connection  ;  here  this  hasty  recapitulation 
must  suffice.* 

§  8.    General  Estimate  of  the  Bishop's  Regality. 

In  possession  now  of  the  principal  facts,  we  may  return  to 
examine  the  generalization  which  was  our  point  of  departure, 
the  statement,  namely,  that  the  Bishop  is  as  king  in  Durham. 
The  dictum  certainly  cannot  be  rejected,  but  its  acceptance 
must  be  conditional  on  a  frank  recognition  of  the  gulf  that  sepa- 
rates theory  and  practice.  Within  the  palatinate,  no  doubt,  the 
Bishop  theoretically  enjoyed  the  rights  and  privileges  of  royalty. 
In  practice,  however,  the  king,  whether  from  motives  of  policy 
or  of  greed,  infringed  upon  these  rights  at  many  points,  hamper- 
ing the  Bishop's  independent  activity  and  from  time  to  time 
compelling  him  to  submit  to  encroachments  and  restrictions 
incompatible  with  his  position  as  a  local  independent  sovereign. 
It  must  not  be  forgotten  that  we  are  studying  a  process  of 
growth  and  degeneration.  Up  to  the  close  of  the  thirteenth 
century  there  has  been  a  development  in  almost  every  attribute 
of  the  Bishop's  royalty,  which,  as  the  supremacy  of  the  crown 
was  defined  and  asserted,  applied  to  itself  the  new  principles 

^  See  below,  §  29.  2  See  below,  §§  21,  24,  and  App.  ii. 

«  See  below,  §  23.  *  See  below,  §  29. 


76  THE  BISHOP  AS  LORD  PALATINE.  cch.  II. 

of  sovereignty.  Thus,  by  a  process  of  reasoning  from  the 
general  to  the  particular,  the  Bishops  of  Durham  lifted  them- 
selves above  the  level  of  even  the  greatest  feudatories  of  Eng- 
land, and  were  ready,  when  the  king  refused  any  longer  to  be 
ousted  by  general  words,^  to  confront  him  with  a  definite  and 
detailed  list  of  privileges,  all  flowing  from  the  richness  of  the 
assumption  which  his  ancestors  had  been  willing  to  admit. 

There  is  therefore  something  to  be  said  on  the  other  side,  in 
regard  to  the  matter  of  royal  encroachments  on  the  palatinate 
before  1300.  That  date  marks  the  culmination,  the  maturity  of 
the  Bishop's  regality.  Then  follows,  during  the  fourteenth 
century,  a  period  of  perplexed  toleration,  not  unnatural  on  the 
part  of  the  crown  in  view  of  the  complexity  of  the  situation. 
Edward  I  and  his  successors  knew  how  to  deal  with  feudalism, 
as  they  knew  how  to  deal  with  the  church ;  but  the  problem  of 
the  palatinate  bristled  with  the  difficulties  of  both  of  these  insti- 
tutions. A  turn  of  the  screw  was  added  by  the  distinct  value 
of  the  bishopric  as  a  buffer  against  Scotland.  On  the  other 
hand,  if  the  Bishop  of  Durham  was  a  sovereign,  he  was  an 
elective  one,  in  whose  choice  the  will  of  the  king,  exercised 
either  independently  or  through  pressure  on  the  pope,  was  the 
determinant.  Moreover,  the  interregna,  during  which  this 
sovereign  state  was  in  the  hands  of  the  king,  were  frequent 
and  sometimes  long;  and,  further,  as  prelate  and  baron  the 
Bishop  was  subordinate  to  the  king.  What  wonder,  then,  that 
in  the  relations  of  the  two  there  should  have  been  constant 
discrepancies  between  theory  and  practice! 

In  time  this  perplexity  disappeared,  but  the  logical  conse- 
quences of  clearer  vision  were  delayed  by  the  disorders  of  the 
fifteenth  century ;  and  when,  under  the  vigorous  policy  of  the 
Tudors,  the  blow  fell,  the  Bishops  no  longer  had  any  care  to 
avert  it.  Rash  generalization  must  of  course  be  avoided,  but  it 
may  be  said  that  at  almost  any  time  between  1066  and  1485  the 
Bishops  of  Durham  desired  to  be  as  kings  in  their  palatinate, 
and  that  during  most  of  this  period  they  in  varying  degrees 
approximated  their  ideal. 

1  Plac.  de  Quo  War.,  305. 


CHAPTER   III. 

THE   OFFICERS    OF   THE   PALATINATE. 

§  9.    Officers  of  State. 

The  Bishops  of  Durham,  of  right  and  by  custom,  employed 
such  officers  as  the  kings  of  England  regularly  used,  or  ordi- 
narily appointed,  either  to  meet  special  emergencies  or  to  carry 
out  the  provisions  of  an  act  of  parliament.^  This  principle, 
expressed  in  the  course  of  an  important  suit  in  parliament  in 
1434,  was  made  authoritative  by  the  judgment  in  favor  of  the 
Bishop  which  terminated  the  action.  It  furnishes  a  convenient 
point  of  departure  in  the  shape  of  a  general  doctrine,  leaving  us 
to  discover  how  early  and  to  what  extent  the  Bishops  of  Dur- 
ham availed  themselves  of  this  privilege,  what  officers  they 
made  use  of  in  the  government  of  the  province  committed  to 
their  charge,  and  what  functions  were  allotted  to  those  officers. 
At  the  outset  a  distinction  will  be  made  between  the  officers  of 
government  and  those  of  the  household.  The  evidence  that 
will  come  before  us  tends  to  show  that  in  respect  to  the  relations 
of  these  two  classes  the  system  of  the  palatinate  was  unique. 
It  does  not  appear  that  the  offices  either  of  state  or  of  the 
household  were  ever  feudalized,  or  that  those  of  the  household 
had  any  governmental  functions;  at  no  time  therefore  were  the 
two  classes  identical  even  in  name,  and  there  is  none  of  that 
displacement  of  the  feudal  nobility  by  persons  of  humble  birth 
dependent  on  the  will  of  their  lord  which  marks  the  history 
of  feudal  courts.  Attention  will  first  be  given  to  the  officers  of 
state. 

Up  to  the  middle  of  the  fifteenth  century  the  steward  {senes- 
callus)  was  the  most   important  administrative  officer  of   the 

1  Rot.  Pari.,  11-12  Hen.  VI,  iv.  427  ff. 


78  THE   OFFICERS  OF  THE  PALATINATE.     [Ch.  III. 

palatinate.  The  earliest  notice  of  a  palatine  steward  comes  from 
the  pontificate  of  Bishop  Geoffrey  (1133-1140),  though  there 
had  doubtless  been  stewards  of  Durham  long  before  that  time. 
This  ofBcer  had  a  double  set  of  functions,  comprising  both  eco- 
nomic and  political  duties  derived  from  the  essential  nature 
of  his  office,  which  was  that  of  representative  or  agent  of  the 
Bishop. 

In  his  economic  capacity  the  steward  represented  the  Bishop 
as  landlord  at  large  of  the  palatinate,  and  may  be  compared  on 
a  magnified  scale  to  the  ordinary  manorial  steward.  In  the 
fourteenth  and  fifteenth  centuries  he  managed  all  business  con- 
nected with  the  amortization  of  land  by  the  Bishop's  licence;^ 
he  attended  to  the  details  of  the  farming  of  boroughs,^  the  rent- 
ing of  land,^  and  the  leasing  of  mines.^  Finally,  by  virtue  of  his 
ofBce  he  held  all  manorial  courts.^ 

In  his  political  capacity  he  represented  the  Bishop  as  head 
of  the  civil  government  of  the  palatinate.  His  duties  in  this 
department  are  made  clear  in  the  commission  of  Sir  Richard 
Marmaduke,  who  was  steward  of  Durham  and  Sadberg  in  13 14. 
Marmaduke  received  custody  of  the  royal  liberty,  *'  with  full 
power  of  assembling  the  people  of  the  aforesaid  liberty  for  the 
security  of  the  country,  and  compelling  them  to  assemble,  as 
often,"  runs  the  document,  "as  you  shall  see  fit;  of  imposing 
and  raising  taxes ;  of  coercing  any  persons  who  do  not  observe 
what  has  been  ordained  for  the  public  welfare;  of  removing 
from  the  liberty  those  who  are  notoriously  reputed  dangerous  to 
the  peace ;  of  commanding  the  inferior  officers  in  whatever  per- 
tains to  the  aforesaid  custody,  and  of  exercising  all  other  powers 
which  the  custodians  of  the  liberty  have  been  accustomed  to 
exercise."  ^  This  authority  amounted  to  a  general  superintend- 
ence of  the  palatine  government,  and  the  steward's  duties  are 

1  Scriptores  Tres,  App.  No.  Ixxv. 

*  Roll  of  original  indentures,  Cursitor  147,  Nos.  3,  6. 

«  Ibid.,  No.  4;  Rot.  Skirlaw,  ann.  i,  m.  1,  and  ann.  4,  m.  7,  curs.  33; 
Rot.  i.  Nevill,  ann.  4,  m.  14,  curs.  42. 

*  Roll  of  original  indentures,  Cursitor  147,  Nos.  i,  2. 

^  Rot.  i.  Nevill,  ann.  i,  m.  5,  and  ann.  4,  m.  14,  curs.  42 ;  Rot.  i.  Booth, 
ann.  i,  m.  2,  curs.  48. 

«  Registrum,  ii.  (iZ()\  see  also  Ibid.,  iv.  384-385. 


§9]  OFFICERS  OF  STATE.  79 

so  stated  in  an  appointment  in  1388.^  This  officer  was  also  a 
member  of  the  council  ex  officio^^ 

The  steward  had,  moreover,  several  judicial  functions.  He 
"craved  court"  for  the  Bishops  from  the  king's  justices  as  long 
as  that  practice  continued,^  and  he  occasionally  levied  distress.* 
During  the  thirteenth  century  he  was  sometimes  associated  with 
the  palatine  justices  for  the  purpose  of  hearing  cases.^ 

This  office  was  never  feudalized  ;  we  know  that  it  was  not 
hereditary,  and  that  from  the  fourteenth  century  onward  it  was 
salaried.  During  the  thirteenth  century  it  seems  to  have  been 
held  chiefly  by  members  of  the  lesser  feudal  nobility ;  ^  but  in 

1  This  officer  received  "  gubernationem  et  regiminem  de  omnibus  homi- 
nibus  et  tenentibus  .  .  .  infra  episcopatum  ...  tarn  tempore  pacis  quam 
guerrae:  "  Rot.  Skirlaw,  ann.  i,  m.  i,  curs.  33. 

2  Feodarium,  46,  76, 186 ;  Registrum,  iv.  349 ;  Rot.  ii.  Wolsey,  ann.  20  Hen. 
VIII,  m.  2  dorse,  curs.  73;  Gneist,  English  Constitution,  i.  149;  below,  p. 

143  ff. 

«  Coram  Rege  2  John,  roll  23,  m.  12  (Ebor.) ;  Plac.  de  Quo  War., 
604;  Pollock  and  Maitland,  i.  570-571,  627  ;  Maitland,  Domesday  Book  and 
Beyond,  282. 

*  See  Bishop  Pudsey's  foundation  charter  of  the  borough  of  Sunderland, 
in  Surtees,  Durham,  i.  297. 

6  See  below,  §  18. 

^  Hutchinson  gives  a  list  of  names,  of  which  the  earliest  is  Henricus 
(1129)  and  the  next  another  Henricus  (1180)  ;  of  these  nothing  definite  is 
known  (Hutchinson,  Durham,  i.  157,  183,  and  cf.  Feodarium,  141).  Adam 
de  Jeland  held  the  office  from  1217  until  1225  (Feodarium,  46,  188;  Fin- 
chale  Chartulary,  56;  Hutchinson,  i.  199).  He  seems  to  have  belonged  to  a 
good  family,  for  in  1228  there  is  a  Sir  Nicholas  de  Jeland  (Feodarium,  272, 
295).  John  de  Rumsey  was  steward  in  1226  and  for  some  time  afterward 
(Ibid.,  123,  149,  217;  Hutchinson,  i.  204).  He  is  also  described  as  "domi- 
nus  J.  de  Rumsey"  (Feodarium,  187,  197).  Geoffrey  de  Leuknore,  who 
held  the  office  in  1242,  was  a  lawyer,  and  incidentally  one  of  the  palatine  jus- 
tices (Ibid.,  186;  Rot.  Matthew,  m.  16  dorse.  No.  33,  curs.  92;  Foss, 
Judges,  iii.  118;  below,  §  18).  From  1258  until  1260  John  Gyleth  of 
Eggescliffe  was  steward  of  Durham.  He  figures  sometimes  as  John  Gyleth 
and  sometimes  as  John  Eggescliffe,  a  circumstance  which  led  Hutchinson 
to  suppose  that  there  were  two  persons  holding  the  office  successively ;  but 
the  full  name  appears  in  1260  (Feodarium,  180,  184;  Hutchinson,  i.  214). 
Guiscard  de  Charron,  who  was  the  steward  of  both  Richard  de  Lisle  and 
Anthony  Bek,  belonged  to  the  greater  nobility,  and  was  also  a  palatine  jus- 
tice (Feodarium,  1 16, 185  ;  Hutchinson,  i.  227 ;  Coldingham  Chartulary,  2 ;  Fin- 
chale  Chartulary,  59 ;  Plac.  de  Quo  War.,  604 ;  Registrum,  iii.  69,  iv.  355). 


8o  THE   OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

the  fourteenth  century  the  tendency  was  to  confer  it  either  on 
one  of  the  great  tenants-in-chief  or  on  a  cleric.  In  the  fifteenth 
century  a  distinct  change  is  visible,  in  a  reference  for  the  first 
time  to  a  chief  or  high  steward  {capitalis  senescalhis)}  It  is 
just  possible  that  the  title  then  became  an  honorary  one,  but 
more  probably  it  did  not.  The  office  was  ceasing  to  be  partic- 
ularly desirable,  and  was  assimilating  more  and  more  to  the 
character  of  agent  or  bailiff  on  a  large  scale.  Separate  stewards 
were  appointed  for  the  outlying  districts  of  Hoveden,  Norham, 
and  Islandshire.^ 

The  palatine  steward  can  not  be  compared  to  the  lord  high 
steward  of  England,  for  the  latter  was  a  feudal  dignitary  whose 
title  passed  by  inheritance  and  who  "  makes  in  his  official  ca- 
pacity no  great  figure  in  English  history."  As  general  adminis- 
trator and  vicegerent  of  the  Bishop  he  has  points  of  resemblance 
to  the  English  justiciar  who  took  over  the  most  important  func- 
tions of  the  high  steward.^  There  is  however  a  closer  analogy 
between  the  palatine  steward  and  the  senechal  of  a  great  French 
fief  such  as  Normandy  or  Anjou,  although  the  functions  of  the 
latter  officer  were  somewhat  more  comprehensive  than  those  of 
his  English  namesake.  The  sMchal  directed  the  department 
of  justice,  commanded  the  army,  and  exercised  the  high  police 
functions  of  the  fief,  besides  presiding  over  the  lord's  house- 
hold. His  office  was  at  first  hereditary,  and  there  was  very 
early  a  tendency  to  make  it  purely  honorary ;  but  in  the  south 
and  west,  under  the  influence  of  the  Plantagenets,  the  feudal 
sMchal  was  replaced  in  the  governmental  mechanism  of  the 
fief  by  an  appointive  and  purely  ministerial  officer  having  the 
same  title.* 

The  earliest  notice  of  a  sheriff  of  Durham  refers  to  the  pontifi- 
cate of  Bishop  Ranulf  Flambard,  whose  nephew,  or  son,  Osbert 
held  the  office  during  most  of  the  first  half  of  the  twelfth  cen- 

1  Rot.  i.  Nevill,  ann.  i,  m.  5,  curs.  42,  A.  d.  1438. 

'  Registrum,  i.  19,  ii.  771,  772,  iii.  332;  Rot.  i.  Hatfield,  ann.  i,  m.  i 
dorse,  curs.  30 ;  Rot.  Fordham,  ann.  4,  m.  7,  curs.  32 ;  Rot.  Skirlaw,  ann. 
8,  m.  15,  curs.  33;  Rot.  DD.  Langley,  ann.  31,  m.  16,  curs.  37. 

*  Stubbs,  i.  401-402 ;  Gneist,  English  Constitution,  i.  234. 

*  Luchaire,  Manuel,  262,  266,  267. 


§9]  OFFICERS  OF  STATE.  gl 

tury  ;  ^  but  it  is  practically  certain  that  at  least  from  the  Norman 
Conquest  the  Bishops  of  Durham  had  their  own  sheriffs.  From 
a  much  earlier  period  they  held  a  court  which  excluded  the 
king's  sheriff;  and  it  is  recorded  in  Domesday  Book  that  neither 
the  king  nor  the  earl  of  Northumberland  had  any  "  custom  "  in 
the  lands  of  S.  Cuthbert  in  Yorkshire.^  The  county  of  Dur- 
ham was  not  included  in  the  survey,  but  it  is  impossible  to 
suppose  that  the  immediate  patrimony  of  S.  Cuthbert  should 
have  been  less  privileged  than  the  lands  held  by  him  in  another 
county.  The  Bishops  must  therefore  have  had  some  officer  who 
discharged  the  duties  of  a  sheriff,  whether  or  no  he  bore  the 
title.  This  practice,  again,  is  not  without  parallel :  Roger 
Montgomery,  earl  of  Shropshire  under  William  the  Conqueror, 
had  his  own  sheriff,  and  there  is  good  reason  to  believe  that 
Roger  was  earl  palatine.^  Except  during  voidance  of  the  see  no 
royal  sheriff  was  appointed  for  Durham  ;*  on  the  other  hand, 
from  the  twelfth  century  onward  there  are  regular  notices  of  the 
Bishop's  sheriff,^  and  in  the  fourteenth  century  the  Bishop's 
commissions  appointing  this  officer  occur.  Before  studying  the 
sheriff's  functions  in  detail,  it  will  be  profitable  to  examine  one 
of  the  earliest  of  these  documents  which  have  survived. 

In  1344  Bishop  Bury,  by  the  advice  of  his  council,  appointed 
William  de  Blaykestone  sheriff  and  escheator  in  the  counties  of 

1  Feodarium,  Ixiv,  112,  145,  152;  Surtees,  Durham,  ii.  210;  Reginaldus 
Dunelmensis,  Libellus,  101-102,  205.  Hutchinson,  Durham,  i.  152,  says 
that  Philip  Fitz  Hamo  was  sheriff  of  Durham  under  Flambard ;  but  this  is 
a  mistake,  for  Philip  held  the  office  under  Bishop  Pudsey  (see  his  charters 
tested  by  that  Bishop,  in  Feodarium,  125,  126). 

2  Domesday  Book,  i.  298  b ;  and  cf.  Maitland,  Domesday  Book  and  Be- 
yond, 97,  278-292. 

*  Ordericus  Vitalis,  Historia  Ecclesiastica,  ii.  414,  and  cf.  220  ;  Stubbs, 
1.  294,  295  ;  Eyton,  Shropshire,  i.  22,  70,  241-246.  See  also  Third  Report 
on  the  Dignity  of  a  Peer,  in  Pari.  Papers,  1826,  vol.  ix.  87. 

*  See  List  of  Sheriffs,  Record  Office  Lists  and  Indexes,  No.  ix. 

5  The  names  are  given  by  Hutchinson  in  the  first  volume  of  his  History 
of  Durham,  at  the  end  of  his  account  of  each  pontificate.  They  are  fairly 
accurate,  but  they  may  be  checked  and  the  list  somewhat  lengthened  by 
reference  to  the  index  of  names  in  the  Feodarium,  and  in  the  chartularies 
of  Brinkburn,  Guisbrough,  Coldingham,  and  Finchale,  published  by  the 
Surtees  Society.     See  also  List  of  Sheriffs,  as  above. 

6 


-    82  THE   OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

Durham  and  Sadberg,  authorizing  him  to  exercise  this  office,  as 
in  all  past  time  had  been  customary,  agreeably  to  the  law  and 
custom  of  the  kingdom  of  England  and  the  royal  liberty  of  Dur- 
ham. The  appointee  had  to  account  to  the  Bishop  for  the  issues 
of  his  office.  Following  this  appointment  a  mandate  known 
as  a  de  mtendendis  was  addressed  to  the  counties  of  Durham 
and  Sadberg  at  large,  enjoining  upon  them  obedience  to  the 
new  sheriff.  On  taking  office  Blaykestone  swore,  according 
to  the  established  formula,  loyally  to  serve  the  Bishop  and  hon- 
estly to  treat  the  people  of  his  bailiwick ;  to  deliver  the  gaols 
and  execute  the  writs  and  precepts  of  the  Bishop  ;  to  show  favor 
to  none,  but  to  do  right  to  all,  rich  and  poor  alike ;  to  maintain 
the  powers  and  privileges  of  the  Bishop,  and  to  consent  to  noth- 
ing by  which  they  might  be  injured  or  diminished,  but  either  to 
repress  such  attacks  or  report  them  to  the  Bishop  or  to  some 
responsible  member  of  his  council.^  This  entire  formula  sur- 
vived, with  very  little  change,  into  the  sixteenth  century. 

The  duties  of  the  sheriff,  apart  from  his  functions  as  es- 
cheator,  group  themselves  under  the  heads  of  military,  judi- 
cial, police,  and  financial  affairs.  For  any  period  before  the 
close  of  the  thirteenth  century  it  is  impossible  to  say  very  much. 
The  difficulty  lies  in  the  fact  that  our  knowledge  of  the  way  in 
which  a  privileged  district  was  fitted  into  the  military  economy 
of  the  kingdom  is  to  a  great  degree  conjectural.^  If  the 
bishopric    contributed    its    share    to    the  fyrd    or    to  the  later 

1  Registrum,  iv.  345  ff. ;  the  other  documents  follow  immediately.  The 
appointment  of  Adam  de  Bowes  to  be  sheriff  and  escheator  in  13 12  is  an 
earlier  instance,  but  the  document  is  curt  and  furnishes  little  or  no  informa- 
tion (Ibid.,  i.  222).  For  similar  appointments  see  Rot.  ii.  Hatfield,  ann.  35, 
m.  12,  curs.  31 ;  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  32;  Rot.  Skirlaw, 
ann.  4,  m.  7,  and  ann.  13,  m.  24,  curs.  33 ;  Rot.  A.  Langley,  ann.  i,  m.  i, 
curs.  34 ;  Rot.  B.  Langley,  ann.  1 1,  m.  8,  curs.  35  ;  Rot.  C.  Langley,  ann. 
30,  m.  II,  curs.  36;  Rot.  DD.  Langley,  ann.  30,  m.  15,  curs.  37;  Rot.  i. 
Nevill,  ann.  4,  m.  16,  curs.  42.  In  strong  contrast  with  these  is  the  appoint- 
ment, by  Bishop  Pilkington  in  1560,  of  Sir  Robert  Tempest  to  be  sheriff 
and  escheator  of  Durham ;  half  of  this  verbose  document  consists  in 
the  acknowledgment  of  the  complete  and  supreme  rights  of  the  queen 
over  the  bishopric  and  the  Bishop.  See  Rot.  ii.  Pilkington,  ann.  i,  m.  i, 
curs.  82. 

2  See  below,  ch.  viii. 


§9]  OFFICERS  OF  STATE.  83 

national  militia,  the  muster  was  no  doubt  managed  by  the 
sheriff.  After  the  reorganization  of  the  national  force  by- 
Edward  I,  however,  the  part  of  the  sheriff  becomes  clearer.  It 
was  his  duty  to  effectuate  the  authority  of  the  persons  to  whom 
commissions  of  array  were  addressed ;  a  writ  would  be  sent 
to  the  sheriff  informing  him  that  the  Bishop  had  issued  com- 
missions to  array  the  fencible  men  of  every  ward,  and  direct- 
ing him  to  see  that  the  people  appear,  armed  and  equipped 
in  the  manner  required  by  the  statute  of  Winchester.  The 
commissioners  were  authorized  to  arrest  refractory  persons,  and 
these  the  sheriff  must  imprison  and  guard  pending  the  Bishop's 
pleasure.^  During  times  of  war  the  sheriff  appears  to  have  held 
the  court  of  marshalsea,  or  at  least  to  have  managed  the  ses- 
sions whether  he  presided  over  the  court  or  not.  But  this 
is  a  somewhat  ambiguous  function  and  is  as  much  judicial  as 
military.2 

The  sheriff  managed  the  machinery  of  the  palatine  judiciary. 
He  presided  over  the  ordinary  and  great  meetings  of  the  county 
court,  and  summoned  the  men  of  the  shire  to  meet  the  justices 
when  a  general  eyre  was  held.^  It  had  always  been  the  practice 
for  the  sheriffs  to  deliver  the  gaols  of  the  county,  despatching 
this  business  in  the  county  court.  But  in  the  fourteenth  cen- 
tury it  seems  to  have  been  felt  that  the  sheriff  was  not  authorized 
to  perform  this  function,  and  the  notion  of  the  necessity  of  a 
special  commission  of  gaol-delivery  was  widely  diffused.  Accord- 
ingly in  1344  Bishop  Bury  issued  to  his  new  sheriff  a  commission 
of  association,  reciting  the  ancient  custom  and  giving  it  his  sanc- 
tion by  creating  the  sheriff  a  justice  of-  gaol-delivery,  with  the 
authority  of  both  sheriff  and  justice.*  This  is  the  earliest  instance 
that  we  have  of  the  change  from  the  old  custom  and  probably 

1  Grose,  Military  Antiquities,  i.  67;  Stubbs,  ii.  229,  301;  Historical 
Documents  relating  to  Scotland,  ii.  181 ;  Registrum,  iv.  269-274.  For 
further  references  see  below,  ch.  viii. 

2  See  below,  §  24. 

8  Le  Convenit,  in  Feodarium,  212;  Rot.  Hundred,  i.  104  b,  129  b; 
Plac.  de  Quo  War.,  604;  Registrum,  i.  256-258,  560  ;  Rot.  Claus.  4  Edw.  II, 
m.  1 1  dorse,  in  Registrum,  iv.  78-80 ;  sheriff's  account,  A.  D.  1336,  Auditor 
I,  No.  I ;  below,  ch.  v. 

*  Registrum,  iv.  346-347. 


84  THE   OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

marks  its  inception,  for  as  late  as  13 16  the  sheriff  of  Durham  was 
delivering  the  gaols  as  of  course/  The  sheriff  also  had  entire 
control  of  the  system  of  inquisitions ;  where  special  commissions 
were  issued  for  any  purpose  he  was  required  to  meet  the  justices 
at  the  appointed  day  and  place  and  produce  a  panel ;  ^  and  all 
releases  from  jury  and  assize  duty  were  addressed  to  him.^ 

The  sheriff  also  discharged  certain  police  duties  in  the  palat- 
inate. He  arrested  and  imprisoned  criminals,  and  the  whole 
machinery  of  extradition  as  between  the  neighboring  counties 
and  the  franchise  was  in  his  hands.*  He  managed  the  business 
of  the  abjuration  of  the  realm  by  those  who  had  taken  sanctuary 
in  the  cathedral.^  When  it  became  necessary  to  employ  the 
temporal  arm  against  excommunicated  persons  who  proved 
contumacious,  the  chancellor  issued  a  writ  to  the  sheriff;^ 
and  this  method  is  described  as  "  the  approved  custom  of  the 
royal  liberty."  ^  In  his  own  tourn  the  sheriff  attended  to  the 
police  business  connected  with  frank-pledge  and  infractions  of 
the  assizes  of  bread,  beer,  measures,  and  the  like.^  All  public 
announcements,  such  as  grants  of  pardon,  royal  statutes  and 
proclamations,  and  the  like  were  made  by  the  sheriff  in  the 
full  county  court.^ 

1  Scriptores  Tres,  App.  No.  xcvi. 

2  See  a  number  of  interesting  cases  of  this  sort,  the  originals  of  which 
are  preserved  in  a  fourteenth  century  chancery  file,  Cursitor  154,  Nos.  11- 
15,  20-25,  34-39,  40-41,  46-47*  73-77 ;  cf.  also  Registrum,  iii.  268-272. 

8  Registrum,  i.  276 ;  Scriptores  Tres,  App.  No.  cxvii ;  Rot.  ii.  Hatfield^ 
ann.  36,  m.  14  dorse,  curs.  31 ;  Rot.  Fordham,  ann.  3,  m.  5  dorse,  and 
ann.  6,  m.  9,  curs.  32. 

*  See  below,  and  particularly  Le  Convenit,  in  Feodarium,  214-216, 
and  Plac.  de  Quo  War.,  604.  In  the  former  document  the  word  "  vice- 
comes  "  does  not  occur ;  we  read  only  of  "  ballivus."  But  at  this  time 
the  terms  were  convertible,  —  "  inquisitio  .  .  .  de  prisis  .  .  .  omnium 
ballivorum  domini  regis,  tam  justitiarum  quam  vicecomitum,"  etc. : 
"Forma  procedendi  in  Placitis  Coronae  Regis,"  cap.  xxv  (a.  d.  1194),  in 
Stubbs,  Select  Charters,  263. 

^  See  below,  §  33. 

^  Registrum,  i.  454. 

^  Ibid.,  312-313,  and  see  99,  166,  406,  589-590. 

^  See  the  Durham  sheriffs*  accounts  noticed  below,  App.  iii. 

*  For  the  proclamation  of  pardons  see  above,  p.  70.  Other  proclama- 
tions will  be  found  in  Foedera,  iii.  pt.  i.  2;  Registrum,  ii.   1137,  iii.  346, 


§9]  OFFICERS  OF  STATE.  85 

A  large  part  of  the  Bishop's  revenue  passed  through  the 
hands  of  the  sheriff,  who  by  virtue  of  his  ofBce  received  all  the 
profits  of  jurisdiction.  In  this  way  he  seized  the  lands  and 
goods  of  all  felons  and  fugitives ;  ^  received  the  fines  imposed 
by  the  judges  or  accruing  for  neglect  of  attendance  at  the 
county  court ;  and  took  charge  of  waifs,  estrays,  deodands,  and 
other  miscellaneous  sources  of  profit.  For  all  these  he  ac- 
counted at  the  Bishop's  exchequer.^  His  aid  was  also  placed  at 
the  disposal  of  the  collectors  of  taxes,  and  was  probably  indis- 
pensable to  them,  for  without  it-  they  would  have  been  unable 
to  coerce  those  who  refused  to  pay.^ 

The  sheriff  was  also  the  Bishop's  escheator,  and  in  this 
capacity  transacted  all  business  arising  out  of  the  Bishop's 
feudal  relations.  He  executed  writs  of  diem  claiisit  extreinutn 
and  ad  quod  dampnuin*  attended  to  all  complaints  arising  from 
grants .  of  wardship  and  marriage,  and  was  the  general  repre- 
sentative of  the  Bishop  as  feudal  lord.^ 

After  the  thirteenth  century  sub-sheriffs  and  sub-escheators 
appear.^     The  high  sheriff,  as  he  was  called  in  other  counties, 

350,  371,  374,  416,  4i7»  421,  iv.  308-309;  Rot.  i.  Hatfield,  ann.  i,  m.  i  dorse, 
curs.  30;  Rot.  Fordham,  ann.  i,  m.  i  dorse,  curs.  32;  Rot.  C.  Langley, 
ann.  30,  m.  10,  curs.  36;  Rot.  iii.  Nevill,  ann.  28  Hen.  VI,  m.  12,  curs. 
44;  Rot.  ii.  Fox,  ann.  5,  m.  12,  curs.  58;  Rot.  i.  Wolsey,  ann.  16,  Hen. 
VIII,  m.  18,  curs.  72. 

1  Le  Convenit,  in  Feodarium,  214;  Registrum,  ii.  1147-1148,  iii.  357; 
exemplification  of  Sadberg  assize  roll,  a.  d.  1279,  Rot.  Matthew,  m.  16 
dorse,  No.  33,  curs.  92;  Auditor  i,  No.  2  (an  episcopal  warrant  relieving 
the  sheriff  from  certain  charges  in  this  respect). 

2  Sheriffs'  accounts,  a.  d.  1336-15355  Auditor  i,  Nos.  i,  2,  3,  40;  Eccle- 
siastical Commissioners,  ministers'  accounts,  189696;  and  see  below,  §  24. 
In  the  course  of  the  fifteenth  century  fines  and  amercements  imposed  in 
court  were  paid  directly  into  the  exchequer,  without  passing  through  the 
sheriff's  hands. 

8  Registrum,  iv.  231,  276-277  ;  Rot.  C.  Langley,  ann.  30,  m.  10,  curs.  36. 

*  Registrum,  i.  256,  iii.  416.  See  further  examples  in  an  original  chan- 
cery file,  Cursitor,  154,  described  below,  App.  iii. 

5  Sheriffs'  accounts,  A.  d.  1336,  1410,  Auditor  i,  Nos.  i,  2.  In  the  latter 
document  the  escheator's  account  is  made  out  separately. 

^  It  appears  that  in  1344,  according  to  ancient  custom,  the  sheriffs  of 
Durham  and  Sadberg  delivered  the  gaols  of  those  counties  at  each  county 
court  held  by  them  (Registrum,  iv.  346) ;  and  although  there  is  no  reason 


S6  THE   OFFICERS  OF  THE  PALATINATE.     [Ch.  III. 

was  a  member  of  the  Bishop's  council  and  acted  as  general 
executive  for  that  body,  particularly  in  the  matter  of  secret  pay- 
ments in  the  nature  of  bribes.^  For  the  outlying  district  of 
Norham  there  was  a  separate  sheriff;  the  holder  of  this  office 
combined  in  his  proper  person  all  administrative  and  judicial 
functions.  In  the  fifteenth  century  this  post  seems  to  have 
become  hereditary.^ 

The  earliest  notice  of  the  coroners  of  Durham  occurs  in  1279, 
but  the  existence  of  this  case,  and  of  another  in  1293,  points  to 
the  presence  of  palatine  coroners  at  a  much  earlier  date.  In 
an  inspeximus  of  part  of  the  assize  roll  of  Sadberg  for  the  year 
1279  this  note  appears,  "  isti  fuerunt  coronatores  post  ultimum 
iter  scilicet,"  ^  etc. ;  unfortunately  the  scribe  did  not  think  it 
worth  while  to  preserve  the  names.  The  jury  that  was  sum- 
moned in  the  quo  warranto  proceedings  in  1293  reported  as  a 
long-estabUshed  custom  the  fact  that  the  Bishop  had  a  coroner 
in  every  ward  of  Durham  and  one  at  Norham,  Bedlington,  and 
Sadberg  respectively.* 

In  the  kingdom  the  coroner  was  elected,  but  in  the  few 
manors  which  possessed  such  an  officer  he  was  appointed  by 
the  lord.^    From  the  fourteenth  century  onward  the  palatine 

to  suppose  that  there  were  separate  sheriffs  for  the  two  districts,  the  words 
seem  to  imply  that  the  office  was  executed  by  different  persons.  In  1381 
John  de  Elvet  was  pardoned  for  all  offences  committed  by  him  when  he 
was  sub-sheriff  and  sub-escheator  of  Durham  and  Sadberg  (Rot.  ii.  Hatfield, 
ann.  36,  m.  14  dorse,  curs.  31)  ;  and  in  1385  there  is  a  memorandum  to  the 
effect  that  William  de  Elmedene,  chancellor  of  Durham,  had  delivered  a 
certain  writ  to  John  de  Hexham,  under-sheriff  of  Durham  and  Sadberg 
(Rot.  Fordham,  ann.  3,  m.  6,  curs.  32).  At  the  end  of  the  fifteenth  cen- 
tury we  hear  of  a  bailiff  in  each  of  the  four  wards  of  Durham,  who  may 
possibly  have  been  the  sheriff's  deputy  (see  Liber  Magnus  Receptae,  1485- 
1494,  fol.  168-172,  464-466,  Ecclesiastical  Commissioners,  ministers'  ac- 
counts, 220198). 

1  Sheriff's  account,  A.  d.  1336,  Auditor  i,  No.  i. 

2  Registrum,  iv.  287 ;  Rot.  Fordham,  ann.  4,  m.  7,  curs.  32,  and  ann.  7, 
m.  10;  Rot.  Skirlaw,  ann.  8,  m.  15,  curs.  33;  Rot.  DD.  Langley,  ann.  31, 
m.  16,  curs.  37 ;  and  see  Raine,  North  Durham,  45-49. 

3  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 
^  Plac.  de  Quo  War.,  604. 

5  Gross,  Select  Coroners'  Rolls  (Selden  Soc),  Introd.  xx,  xxii,  xxix. 


§  9]  OFFICERS  OF  ST  A  TE.  8/ 

coroners  were  appointed  by  the  Bishop  ;  ^  and  it  is  hardly- 
likely  that,  if  this  practice  had  been  suddenly  taken  up  by  the 
Bishop  in  the  abridgment  of  his  subject's  right  of  election,  such 
an  act  would  not  have  been  mentioned  in  the  charter  of  liberties 
obtained  by  the  people  in  1301,  particularly  as  this  very  docu- 
ment, which  has  nothing  to  say  of  the  election  or  appointment 
of  coroners,  complains  of  their  oppressions.^  On  assuming 
office  the  coroner  took  an  oath  before  the  chancellor  in  the 
exchequer  to  serve  the  Bishop  loyally  and  to  account  for  the 
issues  of  his  office.^  He  was  allowed  to  appoint  deputies, 
whose  oppressions  became  a  source  of  complaint  in  1301.*  His 
fee  was  levied  on  the  vills  of  the  palatinate  in  the  shape  of  sheaves 
of  corn.^ 

The  coroner  performed  a  great  variety  of  miscellaneous 
duties.  Thus  in  1279  a  woman  who  had  taken  sanctuary  at 
S.  Hilda's  in  Hartlepool  acknowledged  herself  a  thief  and 
abjured  the  realm  before  the  coroner,  and  the  sheriff  was  re- 

1  "  Thomas  Episcopus  Dunelmensis  commisit  dilecto  sibi  Willelmo  de 
Kirkeby  officium  coronatoris  wardae  Cestrias;  habendum  cum  omnibus  ad 
officium  illud  spectantibus,  ita  quod  de  exitibus  inde  provenientibus  eidem 
episcopo  respondeat  ad  scaccarium  suum  Dunelm.  percipiendo  in  officio  illo 
feodum  consuetum.  In  cujus  rei,  etc.  quamdiu  eidem  episcopo  placuerit 
duraturum ;  datum  Dunelm.  quarto  die  Decembris  anno  secundo."  Rot.  i. 
Hatfield,  ann.  2,  m.  2  dorse,  curs.  30.  Cf.  the  appointment  of  John  Boner 
to  be  coroner  of  tlie  Easington  ward  (Ibid.)  ;  and  see  Rot.  Fordham,  ann. 
I,  m.  I,  curs.  32,  and  ann.  7,  m.  10. 

2  Registrum,  iii.  43-44,  64. 

8  Rot.  E.  Langley,  ann.  17,  m.  8  dorse,  curs.  38;  and  cf.  Rot.  B. 
Langley,  ann.  10,  m.  7,  curs.  35. 

*  See  the  appointment  of  John  de  Billy  to  be  coroner  of  the  Darlington 
ward  for  life,  with  leave  to  fill  the  office  by  deputy  because  in  his  own 
person  he  can  not  work  (Rot.  Fordham,  ann.  i,  m.  i,  curs.  32).  Cf. 
Registrum,  iii.  43-44:  "Et  que  nul  suthbaillive  de  coronere  soit  a  chivalle, 
fors  les  quater  chiefs  corouners,  si  cum  font  en  temps  ses  predecessours." 

5  "  It  is  ordered  and  decreed  by  Robert  Hyndin,  clerke,  chauncelor  of 
the  countie  palantyne  of  Durhaum,  that  the  tenants  and  inhabitaunts  of 
Whitharne  .  .  .  yearly  from  hensforthe,  pay  the  croner,  or  his  deputie 
there  for  the  tyme  beying,  his  corne  in  shayfe,  accordingly  as  it  haithe  ben 
accustomed  in  tymes  past ;  unless  that  they  cane  otherwise  agre  withe  the 
said  coroner":  Rot.  i.  Tunstall,  ann.  2  Edw.  IV,  m.  39,  curs.  77.  See 
Gross,  Select  Coroners'  Rolls,  Introd.  xxi,  note  4. 


88  THE   OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

sponsible  for  her  chattels.^  The  details  of  this  procedure 
appear  from  an  interesting  case  in  the  year  1497.^  Again,  in 
1 30 1,  after  the  death  of  the  prior  Richard  Hoton,  Bishop  Bek 
sent  five  or  six  clerical  persons  to  seize  the  temporalities  of  the 
priorate,  and  among  these  was  J.  Breton,  his  coroner.^  The 
coroners  had  taken  an  active  part  in  the  various  acts  of  oppres- 
sion which  Bishop  Bek  committed  on  the  prior  and  convent, 
and  one  of  them,  in  answer  to  charges  brought  against  him, 
set  up  the  defence  that  the  alleged  act  was  done  by  virtue  of 
his  office  of  coroner  of  the  Bishop,  in  token  of  which  he  carried 
a  rod  in  his  hand  at  the  time  of  the  act.^  The  earliest  coroner's 
account  which  has  survived  (1466)  shows  principally  a  list 
of  rents  and  issues  of  lands,  which  for  one  reason  or  another 
—  for  escheat,  nonage,  or  the  like  —  were  in  the  hands  of  the 
Bishop  ;  but  this  list  is  made  up  only  of  incidentals ;  the  details 
of  the  more  regular  issues  of  his  office  had  been  noted  sepa- 
rately.^ A  case  which  occurred  in  the  year  1344  is  an  excel- 
lent example  of  the  more  regular  functions  of  the  coroner. 
Reginald  de  Bradbery,  in  the  course  of  a  quarrel  with  his 
daughter  Emma,  struck  her  in  the  head  with  a  stick  shod  with 
iron.  Some  months  later,  as  a  result  of  the  wound  thus  in- 
flicted, Emma  died.  Bradbery  and  the  three  adjoining  vills 
guarded  the  body  until  the  coroner  appeared  and  undertook 
the  management  of  the  affair.  An  inquest  was  then  taken  and 
the  four  vills  reported  that  the  killing  was  accidental,  where- 
upon the  Bishop  issued  his  pardon  to  Reginald.^ 

It  is  extremely  difficult  to  speak  definitely  about  the  constable 
of  Durham,  on  account  of  the  confused  way  in  which  the  term 
"constable"  was  used.     In  the  first  place,  it  is  not  clear  that 

1  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 

2  Sanctuarium  Dunelmense  (Surtees  Soc),  Ixx,  30-31 ;  cf.  below,  §  33. 
^  Graystanes,  cap.  xxix,  in  Scriptores  Tres,  Zd. 

4  Registrum,  iv.  21,  and  cf.  33,  35,  48,  53,  54,  63,  64. 

^  Ecclesiastical  Commissioners,  ministers'  accounts,  189697.  The 
coroner  noted  the  issues  of  his  office  "in  quodam  quaterno  papiri  de 
recepta  sua  in  cancellaria  Dunelm."  This  practice  appears  more  fully  in 
the  account  for  1530,  where  the  sums  alone  are  named  (Auditor  5,  No. 
149). 

6  Registrum,  iii.  370;  cf.  Ibid.,  ii.  1257-1258. 


§9j  officers  of  state.  89 

there  was  any  distinction  between  this  constable  and  the  con- 
stable of  Durham  castle.  In  the  second  place,  when  the  office 
comes  into  greater  prominence,  it  is,  with  very  few  exceptions, 
held  in  combination  with  the  chancellorship  or  receiver-general- 
ship, and  sometimes  with  both.  In  regard  to  the  first  point  it 
is  probable  that  the  larger  application  of  the  term  grew  out  of  the 
smaller.  In  the  French  fief,  as  in  the  English  kingdom,  this 
office  was  hereditary  and  of  little  significance  in  the  scheme  of 
government ;  ^  and  this  was  probably  the  case  in  the  palatinate  for 
some  time  after  the  Conquest.  During  the  pontificate  of  Bishop 
William  I  the  castle  of  Durham  becomes  an  object  of  great  im- 
portance ;  indeed,  the  surrender  of  this  fortress  was  the  condition 
made  by  the  king  for  the  reinstatement  of  the  Bishop  after  his  as- 
sociation with  the  conspiracy  of  1088.^  But  to  all  appearances 
the  office  of  constable  of  the  castle  was  at  this  time  hereditary  in 
the  baronial  family  of  Conyers.  Hutchinson  and  Surtees,  relying 
on  the  manuscript  collections  of  certain  Durham  antiquaries  of 
the  last  century,  state  that  this  office  was  conferred  on  Roger  Con- 
yers and  his  heirs  by  a  charter  of  Bishop  William  I.^  This  docu- 
ment no  longer  exists,  but  there  seems  to  be  little  or  no  reason  for 
rejecting  the  story.  The  family  of  Conyers  figured  prominently 
in  the  affairs  of  the  palatinate,  and  several  successive  generations 
of  these  powerful  barons  bore  the  name  of  Roger.  The  second 
Roger,  moreover,  who,  according  to  our  authorities,  inherited  from 
his  father  the  office  of  constable  of  the  castle,  was  a  member  of 
Bishop  Ranulf  Flambard's  council.*  It  was  a  Roger  Conyers  also 
to  whom,  after  the  disturbances  of  Cumin's  intrusion,  the  castle 
of  Durham  was  eventually  surrendered.^  After  the  rebellion  of 
1 1 74,  Bishop  Pudsey,  who  had  been  concerned  in  the  rising,  for- 
feited to  the  king  several  castles,  and  among  them  that  of  Dur- 
ham. Henry  II  then  appointed  Roger  Conyers  constable  of 
the  castle  on  behalf  of  the  crown  rather  than  on  behalf  of  the 

1  Stubbs,  i.  401  ;  Luchaire,  Manuel,  260-263. 

2  See  the  tract,    "  De   injusta   vexatione,"  etc.,  in   Symeon,  i.  171  ;   cf. 
Stubbs,  i.  476-477. 

3  Hutchinson,  Durham,  i.  132;  Surtees,  Durham,  iii.  244. 

^  Finchale   Chartulary,  20;  Scriptores  Tres,  App.  No.  xx;  Feodarium, 
145. 

^  Symeon,  i.  143-161 ;  above,  p.  63. 


90  THE   OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

Bishop.^  This  points  to  the  conclusion  that  the  office  was  still 
feudalized,  and  may  be  construed  as  a  recognition  by  the  king 
that  the  Conyers  family  had  a  claim  to  the  fief  of  the  constable- 
ship,  from  whomsoever  it  was  held.  By  the  middle  of  the  thir- 
teenth century  the  character  of  the  office  had  changed.  From 
this  time  the  constable  is  an  administrative  officer  appointed  by 
the  Bishop.2 

The  constable  of  England  had  military  and  financial  functions. 
The  former,  in  time  of  war,  involved  a  certain  special  jurisdiction 
which  he  shared  with  the  marshal ;  the  latter  were  executed  by 
a  deputy,  who  in  course  of  time  became  an  independent  officer 
under  the  title  of  constable  of  the  exchequer.^  No  such  compli- 
cated character  as  this  can  be  assigned  to  the  palatine  constable. 
He  had,  it  is  true,  certain  military  functions,  as  shown  by  the 
fact  that  in  1400  he  with  several  other  persons  was  commis- 
sioned to  manage  the  clerical  array  of  the  diocese;*  but  he 
seems  altogether  to  have  lacked  the  special  jurisdiction  of  the 
royal  officer.^  The  palatine  constable  had  many  duties  in  the 
exchequer ;  but,  as  the  office  was  usually  held  simultaneously 
with  that  of  receiver-general  or  chancellor,  it  is  very  difficult  to 
decide  in  what  capacity  he  was  acting  in  these  fiscal  matters. 
In  the  fifteenth  century,  however,  there  is  a  little  light  on  this 
point.  In  141 5  John  Brytley,  sometime  coroner  in  the  Chester 
ward,  made  recognizance  with  the  Bishop  that  within  a  given 
time  he  should  discharge  all  arrears  outstanding  for  the  time  he 
held  office,  or  else  furnish  sufficient  security  for  such  payment 
to  the  constable  of  the  Bishop  in  the  castle  of  Durham.^  Again, 
in  1420  the  Bishop  commissioned  William  Thorneburgh  to  col- 
lect and  receive  throughout  the  bishopric  such  moneys,  rents, 

1  Benedictus  Abbas,  i.  161;  Leland,  Collectanea  (ed.  Hearne),  i.  134; 
Jerningham,  Norham  Castle,  100. 

2  Graystanes,  cap.  vi,  in  Scriptores  Tres,  43,  and  cap.  xii,  Ibid.,  53;  Rot. 
Pari.,  21  Edw.  I,  i.  102-105  ;  Registrum,  i.  116. 

8  Madox,  Exchequer,  i.  39,  ii.  281 ;  Coke,  Fourth  Institute,  cap.  xvii,  123 ; 
Grose,  Military  Antiquities,  i.  182  ff.;  Stubbs,  i.  402. 

^  In  the  absence  of  the  Bishop  this  commission  was  addressed  by  his 
vicar-general  to  the  prior,  the  official,  the  constable  of  Durham,  and  others. 
See  Scriptores  Tres,  App.  No.  clxi  (the  commission),  No.  clxii  (the  array). 

^  Cf.  below  §  24.  «  Rot.  B.  Langley,  ann.  10,  m.  7,  curs.  35. 


§9]  OFFICERS  OF  STATE.  9 1 

ferms,  commodities,  and  pensions  of  the  Bishop  as,  during  the 
first  twelve  years  of  his  pontificate,  his  constable  of  Durham 
was  accustomed  to  answer  for  in  his  account  at  the  exchequer.^ 
Meagre  as  this  information  is,  it  still  shows  that  the  constable 
had  an  independent  existence  as  a  fiscal  officer. 

As  constable  of  the  castle  he  was  assisted  by  deputies,  or  cas- 
tellans, and  with  them  he  seems  to  have  had  certain  local  police- 
functions  connected  with  the  government  of  the  castle.  The 
castellans  aided  the  constable  in  the  arrest  of  the  archbishop's 
commissioners,  and  in  13 12  they  were  poaching  on  a  private  fish- 
ery in  the  Wear  by  virtue  of  their  office.^  The  latter  circum- 
stance may  perhaps  be  connected  with  the  constable's  duty  of 
keeping  the  castle  provisioned.  This  idea  is  also  suggested  by  a 
recognizance  made  in  IZJ43  between  the  constable  of  the  castle  and 
a  butcher,  under  condition  that  the  latter  should  render  annually 
seven  quarters  of  mutton  so  long  as  he  plied  his  trade  at  Durham.^ 

The  only  other  important  castle  of  the  palatinate  was  Nor- 
ham,  built  by  Ranulf  Flambard  in  the  beginning  of  the  twelfth 
century.*  The  constable  of  Norham  usually  executed  the  func- 
tions of  all  the  other  officers  of  state,  and  the  office  showed  a  dis- 
tinct tendency  to  remain  in  one  family  for  long  periods.  For  the 
rest,  this  whole  matter  has  a  history  of  its  own,  which  is  military 
rather  than  constitutional,  and  need  not  therefore  be  noticed  here.^ 

The  earliest  mention  of  a  receiver-general  of  Durham  is  on 
Bishop  Bek's  receipt  roll  for  the  year  1307,  the  earliest  docu- 
ment of  the  kind  that  survives.^     Peter  de  Thoresby,  who  held 

1  Rot.  B.  Langley,  ann.  14,  m.  18,  curs.  35. 

2  Registrum,  ii.  11 88-1 189. 

8  Rot.  V.  Nevill,  ann.  5,  m.  8  dorse,  curs.  46.  For  some  minor  details  with 
respect  to  the  fee  of  the  constable  (43/.  dr.  8^.)  and  to  his  great  hall  and 
lodging  in  the  castle,  see  a  survey  of  the  Easington  ward,  A.  d.  1388,  Eccle- 
siastical Commissioners,  ministers'  accounts,  220195 ;  receiver-generals' ac- 
count, A.  D.  1461 ;   Ibid.,  189816, 

^  Raby  and  Barnard  castles  did  not  belong  to  the  Bishop. 

*  See  Jerningham,  Norham  Castle;  Raine,  North  Durham,  45-49 ;  and 
cf.  Rot.  Hatfield,  ann.  i,  m.  I  dorse,  curs.  30 ;  Rot.  Fordham,  ann.  4,  m.  7, 
curs.  32  ;  Rot.  DD.  Langley,  ann.  31,  m.  16  dorse,  curs.  37. 

®  The  roll  is  printed  in  Boldon  Book,  App.  xxv-xxxix  ;  the  original  is  in 
the  Public  Record  Office. 


92  THE   OFFICERS   OF  THE   PALATINATE.      [Ch.  III. 

the  office  at  that  time,  also  served  the  Bishop  as  councillor  and 
justice  itinerant.^ 

Since  the  palatine  exchequer  was  already  organized  in  the  sec- 
ond half  of  the  twelfth  century ,2  the  office  of  receiver-general  must 
have  existed  under  some  name  or  other  since  that  time.  The 
receiver-generals'  accounts  which  have  survived  comprise  prac- 
tically all  the  receipts  and  all  the  expenditures  of  the  palatinate, 
and  thus  correspond  to  the  pells  of  receipt  and  issue  of  the 
kingdom,  for  which  the  treasurer  was  responsible.  The  re- 
ceiver-general, then,  answered  to  the  treasurer,  but  the  palatine 
machinery  never  underwent  the  changes  which  in  the  kingdom 
left  the  treasurer  one  of  the  most  important  officers  of  the  crown 
and  absolute  head  of  the  financial  business  of  the  exchequer.^ 
This  circumstance  will  in  large  measure  account  for  the  fact  that 
the  offices  of  receiver-general  and  chancellor  were  very  fre- 
quently held  by  the  same  person.  The  palatine  exchequer  was 
never  disengaged  from  the  chancery ;  and  though  in  theory  it 
was  made  up  of  officers  corresponding  in  names  and  duties  to 
those  of  the  royal  exchequer,  we  must  conceive  of  a  far  smaller 
number  of  persons  surrounding  the  board  in  Durham  Castle 
than  sat  at  that  in  Westminster. 

It  has  been  said  that  the  receiver-general  took  all  the  rev- 
enues of  the  palatinate  and  managed  the  greater  part  of  the 
expenditures.  This  fact  will  appear  more  clearly  when  the  con- 
struction of  the  receivers'  accounts  is  examined  in  more  or  less 
detail  in  a  later  chapter.'*  Payments  were  for  the  most  part 
made  against  the  Bishop's  warrant,^  but  a  good  deal  seems  to 
have  been  trusted  to  the  receiver's  discretion.  Thus  the  ex- 
penses of  carrying  on  a  lawsuit  in  parliament  were  paid  in  1307 
by  the  receiver  at  the  direction  of  the  chief  justice  of  the  palati- 
nate ;  and  similar  payments  were  made  for  a  good  deal  of  send- 
ing to  and  fro  on  the  Bishop's  business.^     In  the  same  year 

1  Feodarium,  183,  185,  200;  Registrum,  iv,  loo-ioi ;  Graystanes,  cap. 
xix,  in  Scriptores  Tres,  6^- 

2  See  below,  §  36. 

8  See  Stubbs,  i.  400,  428,  ii.  299  ff. 

*  Below,  ch.  vii. 

5  See,  for  example,  Registrum,  i.  468,  480,  520,  589. 

®  Receipt  roll  of  1307,  Boldon  Book,  App.  xxxv-xxxvi. 


§  9]  OFFICERS   OF  STA  TE.  93 

the  receiver  paid  to  various  Italian  merchants  interest  on  the 
Bishop's  loans  to  the  amount  of  upwards  of  four  thousand 
pounds.^  In  the  fourteenth  and  fifteenth  centuries  the  office 
was  frequently  held  by  a  cleric,  who  was  also  chancellor  or  con- 
stable and  sometimes  both.'^ 

In  the  kingdom  the  chamberlains  had  certain  minor  functions 
at  the  exchequer,  where  two  of  them  regularly  sat  as  auditors  or 
accountants.^  There  were  several  chamberlains,  among  whom 
the  primacy  fell  to  the  camerarius  regis,  or  magister  camerarmSy 
a  dignity  which  in  the  twelfth  Qentury  was  hereditary.*  Their 
duties  were  of  a  double  nature ;  they  "  performed  some  Acts  of 
their  Office  in  the  King's  Court  and  Houshold  and  other  Acts 
at  his  Exchequer."  ^  There  is  not  much  material  in  illustration 
of  the  office  in  the  palatinate,  but  there  is  enough  to  permit  the 
conclusion  that  in  essentials  the  royal  and  the  episcopal  officers 
corresponded  to  each  other.  Thus  we  are  able  to  distinguish 
one  superior  chamberlain,^  called  magnus  camerarius  in  the  fif- 
teenth century,"  and  to  see  the  chamberlain  concerned  in  the 
business  of  the  exchequer.^ 

The  chancellor,  both  in  England  and  in  Normandy,  stands 

^  Ibid.,  xxxiv;  cf.  Registrum,  iv.  405-407. 

2  Registrum,  i.  116,  468,  iii.  358-359;  Rot.  Skirlaw,  ann.  15,  m.  9  dorse, 
curs.  33 ;  Scriptores  Tres,  App.  No.  clxi ;  Ecclesiastical  Commissioners, 
ministers'  accounts,  189816,  221 160;  Auditor  i.  No.  3;  Scriptores  Tres, 
App.  No.  clxxxii.  These  references  are  arranged  chronologically,  covering 
the  period  between  131 2  and  1461. 

8  Stubbs,  i.  382,  409. 

*  Madox,  Exchequer,  i.  55-59. 
5  Ibid.,  59. 

*  Simon  Camerarius  seems  to  have  been  Bishop  Pudsey's  chief  chamber- 
lain. See  Feodarium,  loi,  103,  113,  124,  125,  132,  133,  134,  140,  141,  142, 
159,  173,  182;  Attestaciones  Testium,  in  Feodarium,  249-250,  271 ;  Boldon 
Book,  App.  xliv ;  Scriptores  Tres,  App.  No.  xlv.  The  earliest  mention  of 
the  office  is  in  a  charter  of  Bishop  Flambard,  Feodarium,  145. 

■^  Rot.  iii.  Nevill,  ann.  11,  m.  i,  curs.  44,  and  cf.  ann.  13,  m.  13. 

^  Registrum,  ii.  699.  An  original  indenture  recording  a  payment  made 
to  the  chamberlain  is  in  Ecclesiastical  Commissioners,  ministers'  accounts, 
221 160.  Peter  del  Hay,  the  chamberlain  in  question,  took  an  active  part  in 
the  government  of  the  province  (see  Scriptores  Tres,  App.  Nos.  clxx,  clxxix). 
For  a  similar  case,  see  Norham  sheriff's  account,  a.d.  1423,  Auditor  i.  No.  3, 
and  cf.  Scriptores  Tres,  App.  No.  ccxi.    , 


94  THE   OFFICERS  OF  THE   PALATINATE.      [Ch.  III. 

alone  among  the  other  great  officers,  being  distinguished  by 
two  striking  characteristics :  he  was  practically  always  in  holy 
orders,  and  his  office  was  never  feudalized.^  With  the  chan- 
cellor we  closely  associate  the  custody  of  his  master's  official  seal. 
From  the  moment,  therefore,  that  the  possession  of  such  a  seal 
may  be  ascribed  to  the  Bishops  of  Durham,  we  may  date  the 
existence  of  some  officer  answering  to  a  chancellor.^  That  mo- 
ment is  the  pontificate  of  Bishop  Ranulf  Flambard.^  The  title 
of  chancellor,  however,  does  not  appear  until  much  later,  but 
no  satisfactory  explanation  of  this  fact  can  be  offered.  It  is 
strange,  indeed,  that  Bishop  Pudsey,  who  apparently  made  a 
conscious  effort  to  develop  the  palatine  system  on  the  plan 
of  that  of  the  kingdom,*  who  had  a  seal  and  issued  writs  and 
charters,  and  who  appointed  sheriffs  and  other  administrative 
officers,  should  not  have  had  a  chancellor.  It  is  likely,  however^ 
that  if  a  palatine  chancellor  so  called  had  existed  in  Pudsey's 
time,  his  name  would  be  found  among  the  witnesses  of  the 
Bishop's  charters,  but  we  search  there  in  vain ;  a  good  deal  is 
said  of  capellani^  but  nothing  of  a  cancellarius.  Hutchinson  has 
a  story  to  account  for  this  circumstance ;  he  says  that  Bishop 
William  I  ordained  that  from  his  time  forth  the  prior  of  Durham 
should  ex  officio  be  archdeacon  and  temporal  chancellor  of  the 
diocese,  and  that,  with  the  exception  of  Ranulf  Flambard,  suc- 
ceeding Bishops  adhered  to  this  rule.^  No  authority  is  given 
for  this  statement,  and  it  is  difficult  to  understand  how  it  could 
have  originated.    Turgot,  the  first  prior,  was,  it  is  true,  invested 

1  Stubbs,  i.  398  ff.;  Luchaire,  Manuel,  260-261. 

2  We  are  dealing,  of  course,  with  the  temporal  chancellor.  The  office  of 
chancellor  of  a  cathedral  was  unknown  in  England  until  some  time  after  the 
Conquest.     See  Stubbs,  i.  398,  note. 

*  Surtees,  Durham,  i.  p.  xv,  gives  engravings  of  a  number  of  early  pala- 
tine seals.  Such  of  those  of  Bishop  William  I  as  have  survived  are  not 
genuine,  and  there  are  none  earlier.  See  Canon  Greenwell's  remarks  on 
this  subject  in  the  preface  of  the  Feodarium  j  see  also  Finchale  Chartu- 
lary,  20. 

*  This  point  is  treated  below,  p.  163  £f. 

6  Feodarium,  Ixxxvi,  10,  100,  106,  108,  134,  140-142,  177,  182,  198,  206; 
Boldon  Book,  App.  xlii-xlv. 
®  Hutchinson,  Durham,  i.  143. 


§9l  OFFICERS  OF  STATE.  95 

with  archidiaconal  jurisdiction  in  the  diocese/  but  even  this  privi- 
lege gave  rise  in  later  times  to  constant  and  bitter  disputes.^ 
The  story  must  be  rejected  and  the  question  left  in  obscurity. 

At  the  beginning  of  the  thirteenth  century  there  are  indica- 
tions that  some  one  clerk  of  the  chancery  was  assuming  pre- 
eminence among  his  fellows  ;^  but  it  is  not  until  1242,  when  the 
well-known  Walter  de  Merton  was  chancellor  of  Durham,  that 
the  office  comes  prominently  into  view.*  Scattered  notices  of 
various  chancellors,  mostly  as  witnesses  of  charters,  occur  down 
to  the  fourteenth  century  without  throwing  much  light  on  the 
nature  of  the  office.^ 

The  earliest  surviving  commission  of  appointment  for  a  pala- 
tine chancellor  bears  date  1341,  but  it  contains  nothing  beyond 
the  curt  announcement  that  the  Bishop  has  appointed  Robert 
de  Calne  to  the  offices  of  chancellor,  receiver-general,  and  con- 
stable of  the  castle.^  A  like  document  from  the  year  1476  is  a 
little  fuller  :  John  Keyling  is  appointed  chancellor,  with  custody 
of  the  great  seal  during  the  Bishop's  pleasure,  and  full  authority 
to  seal  and  issue  writs  and  other  instruments."     During  vacan- 

1  Symeon,  i.  129, 

2  See  Graystanes, /^jj/;//,  but  especially  cap.  xl,  in  Scriptores  Tres,  103. 
*  See  a  charter  in  Hutchinson,  Durham,  i.  199,  and  Hutchinson's  note  in 

regard  to  Valentinus  and  Simon  de  Ferlington;  cf.  also  Feodarium,  217, 
299-300. 

^  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92;  Feodarium,  186;  below, 
§18. 

^  Ricardus  le  Chanceler  was  chancellor  and  steward  of  Bishop  Stichill 
(Feodarium,  45,  171,  183).  Robert  de  Cave  and  Robert  Avenel  were  later 
chancellors  for  the  same  Bishop:  see  charters  in  Hutchinson,  Durham, 
i.  219,  222;  Feodarium,  185 ;  Graystanes,  cap.  xviii,  in  Scriptores  Tres,  63; 
and  cf.  Ibid.,  App.  Nos.  Ixxi,  cvii.  On  the  death  of  a  Bishop  it  was  cus- 
tomary for  the  chancellor  to  break  his  seals  and  offer  them  at  S.  Cuthbert's 
shrine.  Hutchinson  gives,  as  Bishop  Bek's  chancellors,  William  de  Green- 
field,  Peter  de  Thoresby,  Roger  de  Waltham,  and  Henry  de  Gildeford 
(Durham,  i.  256).  But  Greenfield  was  chancellor  of  the  kingdom,  not  of 
the  palatinate  (Rot.  Pari.,  33  Edw.  I,  i.  167a;  Foss,  Judges,  iii.  96).  On 
the  other  names  see  Feodarium,  183,  185;  Registrum,  iii.  69,  iv.  100-102; 
Boldon  Book,  App.  xxxviii ;  below,  §  18. 

6  Registrum,  iii.  358-359- 

■^  Rot.  i.  Dudley,  ann.  i,  m.  i,  curs.  54;  cf.  Scriptores  Tres,  App. 
No.  ccxii. 


96  THE   OFFICERS  OF  THE  PALATINATE,       [Ch.  III. 

cies  of  the  see,  the  king  appointed  a  chancellor  for  the  palati- 
nate, who  made  use  of  a  special  seal  preserved  at  other  times  at 
the  royal  exchequer/ 

Turning  now  to  the  functions  of  the  chancellor,  we  shall  recall 
at  once  the  fine  phrase  of  Dr.  Stubbs,  to  the  effect  that  the 
chancellor  was  secretary  of  state  for  all  departments. ^  In  that 
capacity  the  office  in  the  palatinate  must  now  be  considered, 
for,  although  with  the  rapid  development  of  central  institutions 
in  the  kingdom  these  words  soon  cease  to  be  true  of  the  royal 
chancellor,  they  apply  to  the  palatine  officer  throughout  the 
independent  history  of  the  county. 

As  secretary,  the  chancellor  was  the  mainspring  of  all  govern- 
mental acts.  In  the  department  of  justice  he  set  in  motion  all 
processes  by  issuing  writs.^  In  the  policing  of  the  county,  he 
authorized  the  arrest  and  punishment  of  persons  dangerous  to 
the  peace,  and  was  the  medium  through  which  the  force  of  the 
temporal  arm  was  placed  at  the  disposal  of  the  church.  To  this 
end  the  chancellor,  at  the  instance  of  the  Bishop  in  his  spiritual 
capacity,  caused  the  arrest  and  imprisonment  of  persons  who 
proved  contumacious  under  excommunication.*  Similar  steps 
were  taken  to  support  the  authority  of  the  spiritual  courts  in 
cases  relating  to  matrimony  and  testament,^  and  even,  at  the 
complaint  of  a  parish  priest,  to  cause  the  arrest  of  certain  per- 
sons "  propter  manifestas  offensas."  ^  Again,  if  the  Bishop  had 
granted  a  pardon,  he  sent  a  precept  under  his  privy  seal  direct- 
ing the  chancellor  to  issue  a  carta  pads  under  the  great  seal.' 
The  chancellor  was  also  occasionally  associated  with  the  other 
justices,  under  special  commission  to  take  cognizance  of  some 
particular  breach  of  the  peace  or  like  misdemeanor,^  and  he  also 

1  Registrum,  iv.  96-97,  176.  ^  Stubbs,  i.  399. 

8  On  this  point  see  the  discussion  with  regard  to  the  Bishop's  writ,  temp. 
Henry  II  and  John,  in  Geoffrey  Fitz  Geoffrey's  case,  below,  App.  i. ;  cf. 
also  a  tariff  of  writs  de  cursu.  Rot.  B.  Langley,  ann.  i,  m.  i,  curs.  35,  and 
a  fourteenth-century  chancery  file,  Cursitor  154. 

^  Registrum,  i.  99,  165,  262,  359,  486. 

5  Ibid.,  312,  407,  551.  ®  Ibid.,  ii.  680. 

■^  See  several  of  these  privy  seals  in  a  bundle  of  miscellaneous  papers 
numbered  Cursitor  211,  especially  Nos.  2  and  3,  temp.  Langley. 

*  Registrum,  iv.  300,  310. 


§9]  OFFICERS  OF  STATE.  gy 

received  the  recognizances  of  those  who  were  bound  over  to 
keep  the  peace.^ 

On  the  administrative  side,  beyond  his  duties  as  a  member  of 
the  council,  the  chancellor  issued  all  patents  for  appointment  to 
office;^  and,  when  in  15 13  the  Scots  had  been  excluded  from 
the  palatinate,  the  chancellor  managed  the  disposition  of  their 
property .2  In  like  manner,  in  the  sixteenth  century,  he  is  found 
adjusting  the  relations  of  the  coroner  and  the  tenants  of  one  of 
the  Bishop's  vills.*  A  vast  deal  of  administrative  business,  pri- 
vate as  well  as  public,  devolved  on  him  by  the  persistence  in 
the  bishopric  of  the  use  of  recognizances  in  chancery,  a  system 
which  gave  way  but  slowly  before  the  more  convenient  forms  of 
contract  by  statute  merchant  or  statute  staple.^ 

The  chancellor  so  frequently  held  at  the  same  time  some  fiscal 
office,  such  as  constable  or  receiver-general,  that  it  is  difficult 
to  distinguish  the  financial  duties  that  devolved  upon  him  as 
chancellor  proper.  In  1349  Bishop  Hatfield  included  his  chan- 
cellor in  the  commission  for  raising  and  collecting  the  four 
hundred  pounds  which  the  "  community  "  of  the  palatinate  had 
agreed  to  pay  the  king  for  immunity  from  a  threatened  eyre.^  In 
the  late  fifteenth  and  early  sixteenth  centuries,  when  the  Bishops 
were  much  away  from  their  diocese,  the  chancellor  appears  to 
have  taken  over  to  a  great  degree  the  management  of  the  pala- 
tine revenue.    In  1502  Bishop  Senhouse  writes  to  his  chancellor 

^  See  below,  §  21. 

■^  See  the  original  privy  seal  of  Bishop  Hatfield,  directing  letters  patent 
appointing  a  chief  forester  of  Weardale  to  be  issued  under  the  great  seal, 
which  was  then  in  the  hands  of  the  constable  (Cursitor  145). 

*  Rot.  i.  Ruthall,  ann.  5,  m.  12,  curs.  70. 

*  Rot.  i.  Tunstall,  ann.  2,  Edw.  VI,  m.  39,  curs.  jy. 

^  See  Pollock  and  Maitland,  ii.  202.  Newcastle  was  brought  under  the 
statute  of  merchants  in  131 1,  but  apparently  the  first  instance  in  the  palati- 
nate of  proceedings  on  a  contract  under  the  statute  is  in  1385,  a  case  else- 
where considered  (below,  p.  250.  See  also  Statutes,  i.  165;  Ashley, 
Economic  History,  i.  205 ;  Rot.  Fordham,  ann.  3,  m.  4,  curs.  32).  Most  of 
'the  entries  on  the  palatine  chancery  rolls  consist  of  recognizances  of  one 
sort  or  another,  public  and  private,  the  nature  of  which  is  sufficiently  indi- 
cated in  the  excellent  calendars  published  in  the  appendices  to  the  Deputy- 
Keepers'  Reports,  Nos.  xxxi-xli. 

*  Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30. 

7 


98  THE    OFFICERS  OF  THE  PALATINATE.      [Ch.  III. 

acknowledging  the  receipt  of  more  than  four  hundred  pounds, 
and"  adding:  "We  thynk  this  receyt  is  verrey  lytyll  for  the 
Wytsonday  fermes.  .  .  .  My  mynde  is  nut  to  trobyll  yow,  hot 
I  myselff  shall  trobyll  theym  that  dewth  nut  their  dewtes  by 
me."  Finally  the  Bishop  asks  for  seven  bucks  from  his  various 
parks,  one  of  which  is  to  be  presented  to  the  prior,  "  and  than 
yourselff  and  John  Rakett  to  have  on  in  lyk  wyse  to  make 
you  mery."^  This  general  administration  of  the  chancellor  is 
forcibly  illustrated  in  several  letters  of  William  Frankleyne, 
chancellor  of  the  palatinate  during  the  pontificates  of  Ruthall 
and  Wolsey,  the  former  of  whom  very  rarely  visited  his  diocese, 
and  the  latter  never.^ 

During  the  vacancies  of  the  chancellorship  it  seems  to  have 
been  customary  to  commit  the  great  seal  to  the  constable. 
This  at  least  is  the  most  cautious  reading  of  three  perplexing 
documents.  In  1375  the  Bishop's  mandate  under  his  privy 
seal,  addressed  to  William  Chancellor,  constable  of  Durham, 
directed  the  latter  to  issue  letters  patent  under  the  great  seal 
for  the  appointment  of  Sir  Thomas  Lumley  to  the  office  of 
chief  forester  of  the  Weardale.^  In  1416  Bishop  Langley  wrote 
to  the  subprior  and  convent  of  Durham,  giving  them  leave  to 
elect  a  new  prior  and  announcing  that  he  had  directed  the  con- 
stable to  issue  the  necessary  licence  under  the  great  seal.*  In 
143 1  the  same  Bishop  wrote  to  William  Chancellor,  the  constable, 
requiring  him  to  issue  a  licence  for  the  fortification  of  a  manor 
house  "under  our  seal,  in  your  custody,  but  without  taking  the 
fee  of  the  great  seal."  ^  The  name  William  Chancellor  in  the 
first  and  last  cases  is  suggestive,  although  of  course  it  is  not  to 
be  supposed  that  a  man  who  held  the  chancellorship  in  1375 
should  continue  to  do  so  in  143 1.  Still,  the  name  fairly  sug- 
gests  the   office;    and,  further,    it   is   known    that   in    1422   a 

1  Scriptores  Tres,  App.  No.  cccxii. 

2  Calendar  of  Letters  and  Papers,  Henry  VIII,  iii.  pt.  ii.  Nos.  2531, 
2946,  3518;  Chambre,  cap.  xiv,  in  Scriptores  Tres,  151  ;  Surtees,  Durham, 
i.  Ixv-lxvi. 

8  Cursitor  145, 

*  Scriptores  Tres,  App.  No.  clxxx.     This  letter  is  dated  at  Calais. 
5  "  Sub  sigillo  nostro  in  custodia  vestra  existente  absque  fine  et  feodo 
magni  sigilli  nostri  ad  opus  nostrum  inde  capiendo  : "  Cursitor  211,  No.  8. 


§  10]  OFFICERS  OF  THE  HOUSEHOLD.  gg 

William  Chancellor  (or  Chanceller)  was  chancellor  of  Durham.^ 
But  even  if  this  hypothesis  of  a  reduplication  of  offices  in  one 
individual  be  admitted,  how  can  the  fact  be  accounted  for  that  a 
man  who  was  both  constable  and  chancellor  was  required  to  per- 
form, as  constable,  functions  which  pertained  to  the  office  of 
chancellor?  As  to  the  case  from  143 1,  it  might  possibly  be 
answered  that  the  object  was  to  avoid  the  expenses  of  the  great 
seal ;  but  that  might  have  been  done  by  the  Bishop's  warrant, 
and  the  other  two  cases  would  still  remain  unaccounted  for.^ 
The  only  plausible  explanation,  then,  is  that  during  the  tem- 
porary vacancy  of  the  chancellorship  the  great  seal  was  in  the 
custody  of  the  constable. 


§  10.    Officers  of  the  Household. 

We  pass  now  from  the  officers  of  state  to  those  more  immedi- 
ate attendants  who  formed  the  Bishop's  familia  or  court.  The 
great  officers  whose  duties  have  been  considered  were  in  their 
capacity  as  councillors  no  doubt  in  constant  attendance  upon 
the  Bishop.  Those  who  will  now  claim  attention  had  no  state 
functions,  but  performed  duties  of  a  purely  ceremonial  and 
domestic  nature.  Durham  was  always,  and  still  is,  one  of  the 
richest  sees  in  England,  and  from  an  early  time  the  Bishops 
kept  great  state,  conceiving  perhaps  that  their  temporal  dignity 
justified  or  required  a  more  lavish  display  than  that  made  by 
other  English  prelates.  Anthony  Bek  carried  this  practice  to 
an  extravagant  point,  and,  accompanied  with  his  retinue  of  an 

1  See  the  mandate  to  William  Chanceller,  chancellor  of  Durham,  to  issue 
letters  patent  under  the  great  seal  in  confirmation  of  the  Bishop's  lease  of 
certain  of  his  lands,  Ibid.  No.  7. 

2  Still  the  difficulty  in  this  case  is  increased  by  the  fact  that  William 
Chanceller  may  possibly  have  been  the  Bishop's  spiritual  chancellor  in  1434. 
In  that  year  a  monk  of  Durham  cleared  himself  of  a  charge  of  incontinence 
by  compurgation.  The  record  of  this  transaction  notes  the  presence  of 
"  Willelmus  Chanceller  domini  Dunelmensis  Episcopi  cancellarius  ; "  but  the 
next  name  on  the  list  is  that  of  the  official  of  the  Bishop.  Nearly  all  the 
witnesses  were  clerics,  and,  inasmuch  as  the  cause  was  purely  ecclesiastical, 
it  is  possible  that  William  may  have  been  spiritual  chancellor.  See  Scriptores 
Tres,  App.  No.  ccx. 


lOO  THE   OFFICERS  OF  THE  PALATINATE.     [Ch.  III. 

hundred  and  forty  knights,  impressed  the  medieval  mind  as  a 
temporal  prince  rather  than  as  a  cleric  or  bishop.^ 

Bek's  successor,  Richard  Kellaw,  appears  to  have  continued 
this  practice  on  a  more  moderate  scale,^  though  this  prelate's 
will  affords  none  of  that  information  which  is  furnished  by  the 
testaments  of  his  successors.^  Bishop  Hatfield,  for  example, 
left  one  hundred  and  twenty  marks  for  the  expenses  of  the 
members  of  his  household,  who  were  to  be  entertained  for  one 
month  after  the  funeral,  at  the  late  Bishop's  cost.*  This  seems 
to  have  been  a  recognized  custom,  for  similar  provision  for  the 
entertainment  of  their  household  was  made  by  Bishops  Skirlaw 
and  Langley.^  In  the  fifteenth  century  all  the  bishops  of  Eng- 
land, "  so  far  as  influence  and  expenditure  were  concerned, 
maintained  the  state  of  earls"  and  kept  their  court  with  an 
array  of  servants,  councillors,  and  chaplains.^  In  Durham,  how- 
ever, an  organization  of  this  sort  seems  to  have  been  developed 
at  least  as  early  as  the  middle  of  the  fourteenth  century.  Bishop 
Hatfield  had  a  treasurer  and  chancellor  of  his  household,"^  and 
Bishop  Skirlaw's  court  consisted  of  a  somewhat  formidable  col- 
lection of  "  officiarii,  familiares,  servitores  et  ministri."  ^  The 
latter  prelate  also  left  a  proportional  legacy  to  every  scutifer 
familiariuSy  valletus  familiarius  vocatus  gromCy  and  pagettus 

1  "  Erat  autem  iste  Antonius  magnanimus ;  post  Regem  nuUi  in  regno  in 
apparatu,  gestu  et  potentia  militari  secundus ;  magis  negotia  regni  quam 
circa  episcopalia  occupatus ;  in  guerra  Regi  potenter  assistens,  et  in  con- 
siliis  providus.  Aliquando  in  guerra  Scotiae  habuit  de  familia  xxvi  vexil- 
larios,  et  communiter  de  sua  secta  centum  quadraginta  milites ;  ita  ut  magis 
crederetur  princeps  laicus  quam  sacerdos  vel  Episcopus.  Et,  quamvis 
gauderet  sic  militum  constipari  agmine,  erga  tamen  eos  sic  se  habuit,  quasi 
de  eis  non  curasset ;  comites  et  barones  regni  majores  sibi  genuflectere,  et 
eo  sedente  milites  quasi  servientes  diutissime  coram  eo  astare  parvipen- 
dens :  "  Graystanes,  cap.  xviii,  in  Scriptores  Tres,  64.     Cf.  Ibid.,  78,  80. 

2  Ibid.,  94. 

8  Bishop  Kellaw's  very  brief  will  is  printed  in  Testamenta  Eboracensia 
(Surtees  Soc),  i.  i. 
*  Ibid.,  121. 

6  Ibid.,  316;  Scriptores  Tres,  App.  No.  ccxi. 
«  Stubbs,  iii.  581-582,  584,  586. 
'  Testamenta  Eboracensia,  i.  122. 
8  Ibid.,  316. 


§  loj  OFFICERS  OF  THE  HOt/SEI^OLJ^y  ^^  jqi 

of  his  household,  and  also  to  every  chaplain  of  his  private 
chapel ;  ^  and  his  example  was  followed  by  Bishop  Langley.^ 
The  household  of  an  earl  in  the  fifteenth  century  averaged  one 
hundred  and  thirty  persons,^  and  that  of  the  Bishop  of  Durham 
was  probably  even  larger. 

It  is  pretty  clear,  then,  that  even  in  the  fourteenth  century 
the  Bishop's  household  was  of  considerable  size  and  had  already 
received  some  definite  organization.  There  is  unfortunately  no 
document,  like  the  "  Constitutio  domus  regis,"  in  which  the 
details  of  that  organization  are,  revealed,  and  we  are  driven 
accordingly  to  depend  on  such  meagre  notices  of  the  various 
officers  of  the  household  as  are  vouchsafed  to  us  in  the  available 
documents.  From  what  we  have  already  learned  of  the  office  of 
chamberlain,  we  may  conclude  that  he  was  in  close  personal 
attendance  on  the  Bishop  and  managed  a  large  part  of  his 
private  expenditure.*  In  the  twelfth  century  we  hear  something 
of  a  marshal ;  "  Gerardus  marescallus  noster  "  figures  in  one  of 
Bishop  Pudsey's  charters,^  and  in  the  same  fashion  we  hear  of 
Henry,  Alexander,  and  Peter,  all  of  whom  held  this  office.^ 
About  1 26 1  a  certain  William  seems  to  have  been  marshal,*"  and 
Henry  le  Mareschal,  who  occurs  in  13 11,  was  probably  so  desig- 
nated from  his  office  and  not  as  by  an  ordinary  surname.^  Adam 
Tirwhit  was  the  ''  marescallus  hospicii  "  of  Bishop  Skirlaw.^     In 

1  Testamenta  Eboracensia,  i.  309-310. 

2  Scriptores  Tres,  App.  No.  ccxii.  The  valleti  were  not  of  course  domestic 
servants.  In  1351  Bishop  Hatfield  issued  a  charter  to  Henry  de  Shenefeld, 
"dilectus  vallettus  noster ; "  but  in  the  same  year  we  hear  of  John  Vesty, 
"vallettus  de  coquina."  See  Rot.  i.  Hatfield,  ann.  6,  m.  i  dorse,  curs.  30; 
cf.  Stubbs,  iii.  574-575. 

3  Stubbs,  iii.  581. 

*  See  above,  p.  93.  Robert  de  Camera  witnessed  two  of  the  codicils  of 
Bishop  Skirlaw's  will.     See  Testamenta  Eboracensia,  i.  313,  316. 

^  Feodarium,  198. 

^  Ibid.,  22,  31  ;  Boldon  Book,  App.  xlii. 

^  Feodarium,  197.  For  a  dated  charter  having  many  of  the  same  wit- 
nesses as  this  one,  see  Ibid.,  49. 

8  Registrum,  i.  41.  When  "marshal"  was  used  as  a  surname,  the 
article  was  generally  omitted.  There  was  a  medieval  family  using  the  name 
in  this  way  at  Wolston  in  Durham     See  Ibid.,  iii.  130,  165  ;  Feodarium,  80. 

8  Testamenta  Eboracensia,  i.  314. 


I02  THE    OFFICERS   OF   THE  PALATINATE.      [Ch.  III. 

1449  Bishop  Nevill  appointed  R.  Bullok  to  be  "  magister 
equorum  episcopi "  for  the  term  of  his  life,  at  an  annual  salary 
of  five  marks ;  Mt  is  not  improbable  that  this  was  a  revival  of 
the  older  office  of  marshal  under  a  more  impressive  title.  The 
marshal,  as  his  name  implies,  had  command  of  the  stable ;  ^  and 
in  the  palatinate  this  duty,  which  probably  included  the  superin- 
tendence of  the  Bishop's  cavalry  escort,  seems  to  have  been 
his  only  function,  for  the  court  of  marshalsea  was  held  by  the 
sheriff.^ 

An  officer  more  strictly  of  the  household  than  the  marshal 
was  the  dapifer  or  sewer.  In  the  king's  household  this  office, 
pushed  into  the  background  by  the  development  of  the  justiciar, 
became  an  hereditary  grand-serjeanty.*  In  the  palatinate  the 
history  of  the  dapifer  is  obscure,  but  it  seems  clear  that,  al- 
though the  title  undergoes  several  changes,  it  is  always  distin- 
guished from  that  of  the  purely  ministerial  steward.  The 
earliest  mention  of  the  dapifer  is  connected  with  the  effort  of 
William  Cumin  to  usurp  the  see  of  Durham ;  the  intruder  was 
able  to  corrupt  Hugh  Pynton,  dapifer  of  the  Bishop,  and  induce 
him  to  take  part  in  a  plot  against  his  master.^  Edmund  the 
dapifer  and  Walter  the  dapifer  witness  charters  of  Bishop 
Pudsey,^  but  after  this  the  term  does  not  occur.  It  is  recorded, 
however,  that  Bishop  Kellaw  made  one  of  the  monks  of  Durham 
his  steward  with  oversight  of  all  his  expenses,'^  and  it  is 
probable  that  this  officer  should  be  conceived  of  rather  as  the 
senescallus  hospicii — a  term  which  also  occurs  —  than  as  the 
senescallus  regiae  libertatis?  This  Bishop's  household  had  on 
great  occasions,  such  as  the  time  of  his  consecration  and  the 

1  Rot.  ill.  Nevill,  ann.  11,  m.  i,  curs.  44. 

2  Stubbs,  i.  401.  «  See  below,  §  24.  *  Stubbs,  i.  401. 

^  Symeon,  i.  156.  Possibly  Hugo,  "  filius  Pyncun,"  who  witnesses 
charters  of  Bishop  William  II,  may  be  identified  with  this  man,  for  in  many 
documents  "  c  "  and  "  t "  are  practically  indistinguishable.  See  Feodarium, 
xiv,  Ixv. 

«  Feodarium,  106,  127,  133,  142,  157,  173. 

■^  Graystanes,  cap.  xxxv,  in  Scriptores  Tres,  94. 

*  It  is  known  that  this  office  was  held  by  a  layman,  Sir  Richard  Marma- 
duke,  and  that  the  functions  ascribed  to  the  monk  were  performed  later 
by  the  house-steward.     See  above,  p.  78. 


§  lo]  OFFICERS  OF  THE  HOUSEHOLD.  103 

celebration  of  Christmas,  the  adornment  of  an  honorary  high 
steward,  who  set  the  dishes  before  the  Bishop.  But  this  office 
was  a  grand-serjeanty  by  which  certain  lands  were  held  of  the 
Bishop  in  Lincolnshire,  and  has  therefore  no  organic  connection 
with  the  matter  in  hand/ 

In  1456  we  meet  with  the  case  of  Robert  Kelsey,  late  senescal- 
his  hospicii  of  the  Bishop ;  this  will  come  before  us  again  in 
another  connection.^  Kelsey  at  the  expiration  of  his  term  of 
office  was  found  to  owe  a  considerable  sum  to  certain  victuallers 
and  money-lenders  for  provisions  furnished  for  the  Bishop's  use 
and  money  borrowed  for  his  necessities.  He  was  accordingly 
authorized  by  the  council  to  raise  the  necessary  money  on  the 
Bishop's  possessions  throughout  the  palatinate.^  In  1472  the 
receiver-general  accounts  for  sums  of  money  paid  to  Thomas, 
hospicius  of  the  Bishop,  for  the  purchase  of  corn,  beer,  and  other 
victuals,*  and  a  similar  entry  occurs  in  the  account  of  1492.^ 
From  the  twelfth  century  onward,  then,  the  Bishops  kept  a  kind 
of  mattre-d^ hotel y  who  under  the  titles  of  dapifer,  senescalhis  hos- 
picii, or  hospiciarius,  managed  their  households,  though  without 
enjoying  the  more  dignified  position  attaching  to  these  titles  at 
the  courts  of  the  English  king  or  the  French  feudatories. 

The  term  pincerna  occurs  a  few  times  in  the  documents, 
at  first  as  the  title  of  an  officer  of  the  household  not  differing 
materially  from  the  dapifer,  except  that  his  special  department 
was  the  cellar  rather  than  the  larder.^  Later  there  is  mention 
of  a  **  capitalis  pincerna,"  who  was  an  appointive  officer  in  the 
seaport  of  Hartlepool,  having  charge  of  the  customs  on  wine 
brought  into  that  town,  and  accounting  at  the  exchequer  for  the 
issues  of  his  office."^  But  there  is  no  evidence  of  any  develop- 
ment connecting  the  earlier  with  the  later  use  of  the  term. 

From  a  very  early  time  the  Bishops  of  Durham  maintained  a 

1  Registrum,  ii.  1142-1143. 

2  See  below,  p.  152. 

^  Rot.  iv.  Nevill,  ann.  18,  m.  2,  curs.  45. 

*  Auditor  5,  No.  149. 

^  Ecclesiastical  Commissioners,  ministers'  accounts,  189698. 

*  Feodarium,  Ixxxvi,  173;  Graystanes,  cap.  xiv,  in  Scriptores  Tres,  56. 
''  Registrum,  iv.  295. 


104  THE   OFFICERS  OF  THE  PALATINATE.     [Ch.  III. 

more  or  less  complete  staff  of  forest  officers,  corresponding  to 
those  appointed  by  the  king.  The  names  and  duties  of  these 
occur  frequently  in  the  documents,  and  from  time  to  time  their 
oppressions  or  extortions  were  a  source  of  complaint  by  the  peo- 
ple of  the  liberty.  For  the  rest,  this  whole  matter,  in  Durham 
as  in  the  kingdom,  has  a  history  of  its  own  which  forms  no  part 
of  this  study.  An  indication  of  some  of  the  more  important 
material,  however,  is  given  in  the  notes.^ 

The  judicial  officers  are  fully  treated  of  in  another  chapter;  ^ 
it  will  be  enough  to  say  here  that,  after  the  Bishop's  court  had 
been  reorganized  in  the  beginning  of  the  thirteenth  century,  a 
staff  of  justices  was  soon  appointed,  and  that  thenceforth  the 
palatine  judiciary  developed  slowly  on  the  royal  model,  produc- 
ing in  course  of  time  nearly  all  the  judicial  officers  that  were  to 
be  found  in  the  kingdom. 

To  sum  up,  then :  the  Bishop's  staff  of  officers  present  several 
characteristics  in  which  they  differ  from  the  pattern  set  in  the 
kingdom  or  in  a  great  continental  fief.  In  the  first  place,  they 
were  at  no  time  feudalized ;  although  such  officers  as  the  sheriff 
and  steward  often  belonged  to  great  families  and  performed 
most  of  their  duties  by  deputy,  still  the  offices  were  purely  ap- 
pointive and  showed  no  tendency  to  remain  in  or  return  to  any 
one  family.  Again,  the  duties  of  two  or  more  offices  were  usu- 
ally discharged  by  one  person.  This  practice,  which  is  easily 
enough  understood  in  view  of  the  extremely  small  area  of  the 
palatinate  and  the  fact  that  it  was  probably  very  sparsely  popu- 
lated, produced  results  extremely  perplexing  to  the  historian. 
The  functions  of  the  various  officers  became  so  confused  that  in 

1  Feodarium,  io6,  141;  Scriptores  Tres,  App.  No.  xxv ;  Boldon  Book,  26, 
29 ;  Graystanes,  cap.  xxiii,  in  Scriptores  Tres,  76  ;  Registrum,  iii.  44,  45, 
64,  6^  ;  Calendar  of  Patent  Rolls,  1330-1334,  p.  189;  Registrum,  iv.  272-273  ; 
Rot.  ii.  Hatfield,  ann.  19,  m.  14,  curs.  31  (appointment  of  a  chief  forester  of 
Weardale)  ;  the  original  privy  seal  for  a  similar  appointment  in  1375  is  in 
Cursitor  145 ;  an  interesting  case  respecting  the  exactions  of  the  forest 
officers  will  be  found  in  Cursitor  162,  Nos.  34-39,  A.  D.  1365.  For  some 
material  bearing  on  the  superintendence  of  charcoal-burners  and  iron-smelt- 
ers by  the  forest  officers,  see  Rot.  i.  Hatfield,  ann.  12,  m.  11  dorse,  curs. 
30,  and  Rot.  DD.  Langley,  ann.  9  Hen.  VI,  m.  3  dorse,  curs.  37. 
2  Below,  §  18. 


§  lo]  OFFICERS   OF   THE  HOUSEHOLD  105 

many  cases  it  is  almost  impossible  clearly  to  distinguish  between 
the  duties  of  two  offices  commonly  held  by  the  same  person, 
as,  for  example,  between  the  chancellorship  and  the  receiver-gen- 
eralship. From  another  point  of  view  this  confusion  is  no  more 
than  a  case  of  retarded  development,  a  rudimentary  condition 
occasioned  by  the  lack  of  that  pressure  which  economic  forces 
were  bringing  to  bear  on  the  institutions  of  the  kingdom.  We 
shall  find  good  examples  of  this  influence  in  the  judiciary  and 
exchequer  of  the  palatinate.  On  the  other  hand,  the  forces  at 
work  in  the  kingdom  had  a  weak  secondary  reaction  on  the 
mechanism  of  the  palatine  government,  for  the  latter  shows 
the  effect  of  a  certain  amount  of  self-conscious  imitation  of 
the  larger  system.  These  points  will  be  noticed  again  in 
succeeding  chapters. 


^      CHAPTER   IV. 

THE   ASSEMBLY  AND    THE   BISHOP'S    COUNCIL. 
§11.    Development  of  the  Assembly. 

"The  Bishops  of  Durham  anciently  had  a  council  (in  the 
nature  of  a  parliament)  consisting  of  diverse  barons  (called 
barones  episcopi)  .  .  .  before  whom  appeals  from  the  Bishop's 
chancery,  and  writs  of  error  from  his  court  of  pleas,  were  brought 
and  determined ;  and  money  or  aids  given  for  the  defence  of  the 
kingdom  and  the  Bishop's  royal  liberties."  ^  These  words  were 
written  at  the  end  of  the  seventeenth  century,  when  the  body  in 
question  had  —  if  it  ever  existed  —  already  become  a  tradition. 
The  writer  had  no  better  authority  than  a  somewhat  random 
statement  in  Camden,^  certain  passages  in  Symeon  of  Durham 
bearing  on  the  palatine  baronage  which  have  already  been  no- 
ticed,3  and  a  certain  amount  of  material  of  the  fourteenth  and 
fifteenth  centuries  implying  the  existence  of  some  kind  of  a  pala- 
tine assembly  with  a  limited  power  of  self- taxation.  Later  his- 
torians of  the  palatinate  have  followed  pretty  closely  the  words 
of  Camden  and  Spearman,  without  venturing  to  examine  the 
matter  more  carefully.*  It  becomes  necessary  therefore  to  con- 
sider the  question  in  detail.  Before  undertaking  this  it  should 
be  said  that  we  shall  have  to  do  with  two  bodies,  which,  at  first 
almost  indistinguishable,  soon  come  to  have  a  distinct  existence 
and  an  independent  history.  This  fact  indeed  is  evident  enough 
in  the  words  of  Spearman,  who  is  clearly  confusing  the  functions 
of  an  assembly  and  a  council.     Since  these  two  bodies  had  a 

^  Spearman,  Inquiry,  15. 
2  Britannia,  ii.  935. 
2  Above,  pp.  63-67. 

*  Hutchinson,  Durham,  i.  127-128;  Surtees,  Durham,  i.  p.  xvi;  Long- 
staffe,  Darlington,  56. 


§  II]  DEVELOPMENT  OF  THE  ASSEMBLY.  107 

common  origin,  the  greater  including  the  less,  we  shall  examine 
first  the  assembly  of  the  palatinate. 

With  regard  to  the  period  before  the  Conquest  we  have  no 
direct  evidence  and  must  therefore  depend  entirely  upon  conjec- 
ture. Very  soon  after  1066  we  begin  to  hear  of  something  like 
an  assembly  in  the  bishopric.  The  events  leading  up  to  the 
murder  of  Walcher,  the  first  Norman  Bishop,  in  1080,  and  the 
circumstances  of  that  crime  have  significance  in  this  connection. 
The  story  is  detailed  in  another  chapter,  and  will  have  to  be  re- 
curred to  in  the  course  of  the  present  investigation,  but  the  points 
of  importance  may  here  be  recapitulated.  Two  of  the  Bishop's 
advisers,  jealous  of  each  other's  influence  over  their  lord,  fell  to 
quarrelling  in  the  course  of  an  argument  before  the  Bishop  in 
the  moot-stead  {placiti  locus).  One  of  them  left  in  anger  and 
was  shortly  afterward  assassinated.  The  blame  of  this  crime 
was  laid  at  the  Bishop's  door,  and  he  was  obliged  to  meet  the 
angry  relatives  of  the  murdered  man  at  a  gemot  at  Gateshead  in 
the  bishopric.  Here,  carried  away  by  passion,  the  people  bru- 
tally murdered  their  Bishop.^ 

In  the  foundation  charter  of  the  convent  of  Durham,  sup- 
posed to  have  been  issued  by  Bishop  William  I  in  1092  but 
actually  forged  by  the  monks  in  the  first  quarter  of  the  twelfth 
century,  the  following  words  occur :  "  Igitur  senes  et  pruden- 
tiores  totius  Episcopii  homines,  qualiter  in  initio  apud  Sanctum 
ageretur  Cuthbertum  a  me  [episcopo]  exquisiti,"  etc.^  The 
spuriousness  of  this  document  does  not  in  the  least  affect  its 
historical  value  for  the  present  purpose.  The  writer,  with  every 
wish  to  make  his  work  regular,  must  naturally  enough  have  de- 
scribed the  procedure  of  his  own  day,  the  Bishop  consulting  the 
assembly  of  notables  with  regard  to  the  custom  and  tradition  of 
the  country. 

The  next  bit  of  evidence  is  curious  and  bears  on  its  face  the 
marks  of  extreme  antiquity.     It  consists  of  the  regulations  of 

1  Florence  of  Worcester,  ii.  14-15;  Symeon,  i.  116-117,  ii.  208-210; 
Anglo-Saxon  Chronicle,  i.  351;    below,  p.  136  if. 

2  Feodarium,  xxxviii.  The  same  words  occur  in  Symeon,  i.  120  ff.  The 
spuriousness  of  the  charter  is  sufficiently  demonstrated  in  Canon  Green- 
well's  preface  to  the  Feodarium. 


I08  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

the  special  peace  attaching  to  the  feast  of  S.  Cuthbert  in  Septem- 
ber, and  reads  as  follows:  "Haec  est  consueiudo  et  lex  sancti 
Patris  Cuthberti,  a  religiosis  et  potentibus  viris  antiquitus  in- 
stituta :  scilicet  ut  ante  ipsius  Festum,  quod  mense  Septem- 
bris  solenniter  celebratur,  omnes  Barones,  scilicet  Teines  et 
Dreinges,  aliique  probi  homines,  sub  Sancto  praedicto  terram 
tenentes,  Dunelmum  conveniant  .  .  .  ibidem  renovent  et  con- 
firment  legem  et  consuetudinem  Pacis  S.  Cuthberti,  viz.,  qualiter 
pax  Festi  ipsius  ab  omnibus  sit  observanda  et  tenenda."  ^  These 
words  were  written  in  a  Durham  gospel-book  that  perished  in 
1734.  They  had,  however,  been  previously  copied  into  the  regis- 
ter of  the  dean  and  chapter,  and  in  171 5  this  transcript  was  col- 
lated with  the  original  by  Mickleton,  the  Durham  antiquary .^ 
From  the  form  and  subject-matter  of  the  whole  document  it 
may  be  assigned  to  the  period  before  the  Norman  Conquest. 
For  the  present  purpose  the  point  to  be  remarked  is,  that  from 
a  remote  period  there  was  in  the  palatinate  an  annual  gathering 
of  the  barons  and  freemen.  That  this  was  still  customary  in  the 
fourteenth  century  is  clear  from  the  appearance,  in  the  letter- 
book  of  Bishop  Richard  Bury  (1333-134S),  of  a  form  of  invita- 
tion to  attend  the  feast  of  S.  Cuthbert.^ 

In  1 147  a  long-standing  quarrel  between  the  prior  and  arch- 
deacon of  Durham  was  settled  by  the  Bishop  William  II  and 
"  senioribus  quibusque  saepius  de  Episcopatu  nostro  ad  utriusque 
allegationis  controversiam  audiendam  convocatis."  *  In  11 80 
there  is  the  record  of  the  conveyance  of  certain  lands  to  the 
prior  and  convent  "  in  presencia  Domini  Hugonis  Dunelmen- 
sis  Episcopi  et  baronum  Episcopatus  in  pleno  placito  apud 
Dunelm."  ;^  and  a  similar  transaction  in  1185  is  recorded  in  the 
same  words.^  In  like  manner  and  in  the  same  pontificate  an 
undated  document  records  a  grant  of  land  made  in  the  presence 
of  the  Bishop,  his  chamberlain,  his  sheriff,  and  a  large  number  of 
other  persons,  among  whom  may  be  recognized  the  names  of 
several  palatine  barons.^     Finally,  a  quit-claim  made  during  the 

^  Scriptores  Tres,  App.  No.  cccxxxii.  ^  ibid. 

3  Registrum,  iv.  435. 

*  Charter  of  Bishop  Williani  II,  in  Feodarium,  Ix. 

^  Feodarium,  20.  ^  Ibid.,  141.  "^  Ibid.,  134. 


§ii]  DEVELOPMENT  OF  THE  /iSSEMBLY.  109 

vacancy  of  the  see  (1195-1197)  is  recorded  as  accomplished 
"coram  curia  Dunelm."  and  the  custodians  of  the  vacant  see, 
who  would  in  this  case  represent  the  Bishop ;  the  witnesses, 
who  were  in  the  court,  included  the  sheriff  of  the  palatinate  and 
a  number  of  barons.^ 

Such,  then,  is  the  evidence  obtainable  up  to  the  close  of  the 
twelfth  century.  It  will  probably  at  once  be  objected  that  the 
words  of  these  quotations  do  not  so  much  as  raise  a  presumption 
that  they  all  refer  to  the  same  institution.  Though  this  be 
admitted  for  a  moment,  there  is  still  nothing  to  prevent  them 
from  referring  to  different  aspects  of  a  single  institution.  Con- 
sider first  the  political  conditions  of  the  bishopric  and  the  sur- 
rounding counties  at  the  time  of  Bishop  Walcher's  murder. 
There  is  strong  reason  to  believe  that  something  of  the  local 
independence  of  the  old  Northumbrian  kingdom  still  survived 
here ;  this  much  we  may  take  from  the  hypothesis  of  Mr.  Page 
without  following  him  to  the  length  of  accepting  the  continued 
existence  of  the  Northumbrian  witan.^  The  story  of  Walcher's 
murder  has  shown  us  a  gemot,  presided  over  by  the  bishop  and 
engaged  in  legal  business,  and  a  gemot,  assembled  at  least  for 
the  purpose  of  adjusting  a  quarrel,  not  litigious,  between  the 
Bishop  and  one  of  his  tenants.  This  gemot,  then,  bears  the 
double  aspect  of  a  court  of  law  and  an  assembly,  both  of  which 
were  proper  to  the  shire-moot  under  the  Anglo-Saxon  dispensa- 
tion ;  3  and  Anglo-Saxon  custom  and  practice  would  scarcely 
yet  have  been  displaced  in  a  district  so  loosely  attached  to 
the  Norman  kingdom  that  it  was  omitted  from  the  Domesday 
survey. 

Again,  we  know  that  it  was  customary  for  those  who  held  land 
under  S.  Cuthbert,  namely,  the  tenants  of  his  church,  to  assem- 
ble annually  for  the  performance  of  some  ceremony  which  em- 
phasized their  mutual  relation  and  the  bond  which  attached 
them  to  the  saint  and  his  church,  their  common  lord.  This 
meeting  then  will  be  a  kind  of  folc-gemot  of  the  men  of  the 
saint,  who  form  a  community  within  and  apart  from  the  old 
Northumbrian  kingdom.  This  meeting  of  Haliwerfolc,  drawn 
together  by  a  bond  of  common  tenure  which  contains  an  element 

1  Feodarium,  161.  2  See  above,  p.  17.  ^  Stubbs,  i.  136-137. 


no  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

of  feudalism,  is  still  in  its  essential  nature  a  shire-moot.  Now, 
before  the  Conquest  the  court  of  a  shire  or  hundred  was,  when 
the  jurisdiction  belonged  to  the  church,  the  court  of  the  lord  of 
the  land,  that  is,  of  the  abbot  or  the  bishop.^  In  Durham  there 
was  no  abbot,  and  the  Bishop  accordingly  takes  jurisdiction  over 
the  tenants  of  his  church,  who  do  suit  at  the  court  which  is  in 
his  hands  ;  but  since  this  is  a  shire-moot  it  has  functions  and 
aspects  other  than  judicial. 

If  this  hypothesis  be  correct,  the  shire-moot  of  Durham  will 
have  a  development  unique  in  the  history  of  English  local  institu- 
tions. It  finds  itself  in  a  district  with  no  actual  head,  in  a  king- 
dom whose  royal  dignity  has  passed  to  a  line  of  far-away  Wessex 
princes  unable  to  do  more  than  retain,  by  frequent  reconquests, 
the  title  they  have  so  laboriously  acquired.  Under  these  circum- 
stances the  shire-moot  will  not  lose  its  character  of  folc-gemot. 
Since  all  local  business  must  be  transacted  here,  there  will  be  a 
pressure  of  legal  and  economic  necessities  that  will  tend  to  give 
the  body  a  judicial  and  administrative  aspect.  The  feudal  ele- 
ment will  be  found  in  the  attendance  of  "  the  thanes,  drengs,  and 
other  lawful  men  "  holding  land  under  the  saint,  who  will  give  to 
the  gathering  a  dignity  suggesting,  on  a  small  scale,  a  meeting  of 
the  national  council.  If  this  explanation  be  acceptable,  then 
in  the  great  meetings  of  the  Bishop's  court  up  to  the  beginning 
of  the  twelfth  century  will  be  seen  a  kind  of  local  assembly,  the 
folc-gemot  of  Haliwerfolc. 

The  bishopric  was  now  taking  its  place  among  the  greatest  of 
English  fiefs  and  effectually  excluding  the  king's  jurisdiction.^ 
The  shire-moot  has  therefore  the  opportunity  of  free  develop- 
ment, and  in  the  activities  of  the  notables  {seniores  et  pruden- 
tiores  homines)  may  be  seen  something  more  extensive  than  the 
functions  of  mere  suitors  or  judgment-finders  at  an  ordinary 
county  court.  The  addition  of  the  element  of  barons  gives  an- 
other twist  to  the  matter,  and  presents  the  body  somewhat  in  the 
light  of  the  cour  plenihe  of  a  French  fief.     This  latter  gather- 

^  Maitland,  Domesday  Book  and  Beyond,  277,  and  cf.  281. 

2  This  is  worked  out  below,  ch.  v.  In  the  first  half  of  the  century  there 
was  doubtless  no  effort  to  restrain  local  independence;  and  in  Henry  II's 
time  it  was  admitted  that  the  king's  officers  might  not  act  in  the  bishopric. 


§11]  DEVELOPMENT  OF  THE  ASSEMBLY.  m 

ing  concerned  itself  with  precisely  such  business  as  we  have  seen 
transacted  in  the  presence  of  the  Bishop  and  all  the  barons  of 
the  bishopric  in  pleno  placito}  Moreover,  the  feudal  system,  at 
least  as  far  as  tenure  was  concerned,  had  now  established  itself 
in  England,  and  in  feudal  theory  all  of  the  king's  tenants-in-chief 
were  members  of  his  court  and  council.^  Since  the  Bishop  stood 
in  place  of  the  king,  this  doctrine  would  account  for  the  presence 
of  the  barons  at  a  great  meeting  of  the  assembly  and  for  the  im- 
portance assigned  to  them  in  the  record.^  The  danger  of  at- 
taching too  much  importance  to  the  feudal  element  must  be 
guarded  against.  It  was  doubtless  present  in  the  assembly  in 
some  rudimentary  form  before  the  Conquest,  and  the  predomi- 
nance, in  the  twelfth  century,  of  a  feudal  mode  of  thought  gave  it 
greater  emphasis  in  the  palatine  assembly  thaft  its  actual  growth 
warranted. 

It  must  be  remembered  that,  throughout  the  kingdom,  the 
shire-moot  by  no  means  altogether  lost  its  character  of  an  assem- 
bly of  the  people  after  the  Conquest.*  With  the  development  of 
legal  science  and  machinery  the  ordinary  meetings  of  this  court 
in  the  English  counties  became  of  less  importance,  but  1)\q  plenus 
comitatus  retained  a  measure  of  administrative  and  financial 
functions  as  the  mouthpiece  of  the  "community"  of  the  county.^ 
This  same  development  operated  in  Durham  to  set  apart  the 
judicial  functions  of  the  body  which  we  are  considering,  and  to 
construct  out  of  them  a  more  or  less  articulate  judiciary.^ 

We  have  now  drawn  for  ourselves  the  picture  of  a  local  assem- 
bly, originating  at  some  point  considerably  earlier  than  the  Nor- 

1  Luchaire,  Manuel,  250  £f. ;  against  this  suggestion,  see  Gneist,  English 
Constitution,  i.  149. 

2  Stubbs,  ii.  194. 

^  We  come  here  in  sight  of  the  controversy  between  Dr.  Stubbs  and 
Professor  Gneist,  with  respect  to  the  relations  in  point  of  continuity  between 
the  witan  and  the  later  great  council  (Stubbs,  i.  385).  Whatever  may  have 
been  the  ratio  of  comparison  between  the  palatine  assembly  and  the  national 
body  which  later  expanded  into  parliament,  the  existence  of  the  Durham 
gathering  before  the  Conquest,  and  its  development  into  the  partially  feudal- 
ized body  of  the  twelfth  century,  are  almost  certain. 

*  See  Pollock  and  Maitland,  i.  542. 

^  Ibid.  *  See  below,  ch.  v. 


112  THE  ASSEMBLY  AND    THE   COUNCIL.        [Ch.  IV. 

man  Conquest  in  the  regular  meetings  of  a  shire-court,  which 
happened  to  be  in  the  hands  of  a  great  immunist,  and  in  the 
peculiar  annual  gathering  of  the  tenants  of  the  lord  of  that 
court.  We  have  seen  that  these  elements  had,  from  various 
political  causes,  the  opportunity  of  free  development.  Under 
these  circumstances  the  machinery  of  the  shire-court  appears 
to  have  been  sufficient  to  meet  the  administrative  and  legal  re- 
sponsibilities that  the  isolation  of  the  district  involved.  The 
great  meetings  therefore  assumed  more  and  more  the  character 
of  a  governmental  body. 

This  development  is  not  without  a  parallel.  In  the  Isle  of 
Man  an  isolation,  in  some  ways  more  complete  than  that  to 
which  the  bishopric  was  subjected,  operated  to  produce  a  gov- 
ernmental body  known  as  the  Tynwald.  This  was  a  primary 
assembly  which  included  all  the  freeholders  of  the  island  and 
embraced  also  the  lord's  council.  It  met  annually  and  had  ad- 
ministrative and  even  rudimentary  legislative  functions.^ 

We  come  now  to  the  thirteenth  century.  In  order  to  support 
the  view  which  has  been  advanced,  it  will  be  necessary  to  show 
that  the  communitas  of  the  bishopric  undertook  independent  cor- 
porate action,  and  that  this  action  was  taken  in  a  meeting  which 
in  certain  respects  corresponded  to  the  plenus  comitatus  of  any 
other  county  in  the  kingdom.  In  1208  the  barons,  knights,  and 
free  tenants  of  Haliwerfolc  obtained  from  the  king  a  grant  of 
certain  important  privileges,  paying  handsomely  for  their  char- 
ter. Among  other  things,  they  got  leave  to  use  in  the  Bishop's 
court  the  forms  of  procedure  recently  introduced  by  Henry  \\? 

1  See  Wilson,  History  of  the  Isle  of  Man,  in  The  Older  Historians  of  the 
Isle  of  Man  (Manx  Soc,  vol.  xviii),  96,  99,  115-116;  Records  of  the  Tyn- 
wald (Manx  Soc,  vol.  xix). 

2  Rot.  Chart.,  10  John,  182  a;  Pipe  Roll,  13  John,  in  Boldon  Book, 
App.  xiii  ff .  This  roll  contains  the  account  of  the  bishopric  from  the  tenth 
to  the  thirteenth  of  John ;  on  page  xv  is  the  following  entry  :  "  And  of  700 
marcs,  and  of  35  marcs  for  seven  palfreys  of  the  knights  of  Haliwarfolk.  And 
of  70  marcs  of  the  same  for  the  use  of  the  Queen,  for  holding  the  Assizes  of  the 
kingdom  of  England,  saving  the  liberties  of  the  Bishoprick  of  Durham."  Ap- 
parently the  Bishop  had  opposed  this  grant  and  outbribed  his  subjects,  for 
in  1207  he  obtained  leave  to  have  in  his  court  all  the  liberties  which  he  en- 
joyed before  his  knights  of  Haliwerfolc  made  complaint  to  the  king.  See 
Rot.  Lit.  Claus.,  9  John,  i.  90. 


§ii]  DEVELOPMENT  OF  THE  ASSEMBLY,  113 

Two  years  before,  1205- 1206,  an  important  case  in  the  bishopric 
had  turned  on  the  refusal  of  the  Bishop's  court  to  allow  the  ten- 
ant to  avail  himself  of  the  grand  assize.  The  tenant,  wishing 
to  put  himself  on  the  country,  brought  a  writ  directing  the  Bishop 
to  give  over  the  plea.  These  are  the  words  of  the  report:  "Et 
cum  ipse  breve  illud  obtulisset,  Jordanus  filius  Scolland,  unus 
de  curia,  dixit  quod  non  omitteret  propter  breve  regis  quin 
procederet  in  ilia  loquela."  This  man  was  one  of  the  barons  of 
the  bishopric,^  but  he  speaks  here  probably  as  one  thQJudicatores 
of  the  court.  At  any  rate,  proceedings  were  interrupted,  and 
the  Bishop  advised  his  men  (^consuhdt  suos)  that,  since  the  king's 
writ  was  in  question  and  the  grand  assize  could  not  be  had  in 
his  court,  they  should  depute  some  of  their  number  to  compro- 
mise with  the  tenant.  This  was  in  1 205-1 206;  in  1208  the 
Bishop  died,  and  the  people  of  the  bishopric,  as  we  have  seen, 
obtained  the  king's  charter  allowing  the  new  assizes  to  be  used  in 
the  Bishop's  court.  This  case  does  not  of  course  prove  beyond 
question  that  the  people  of  the  bishopric,  assembled  or  repre- 
sented in  the  county  court,  dealt  with  the  king  to  obtain  a  char- 
ter of  liberties;  but  it  is  very  difficult  to  see  how  otherwise 
the  transaction  was  effected.  A  strong  presumption  is  thus 
raised  that  the  county  court  was  the  organ  for  this  kind  of 
action.2 

The  somewhat  meagre  evidence,  then,  points  in  the  direction 
of  the  hypothesis  we  have  set  up,  namely,  that  the  palatine 

1  "  Tres  vero  barones  episcopi,  Rogerus,  scilicet,  de  Coinneriis,  Gaufridus 
Escolland,  at  Bertram  de  Bulemer:  "  Symeon,  i.  158.  Geoffrey  was  Jordan's 
ancestor.  The  name  occurs  frequently  in  the  charters  (see  Feodarium, 
index,  s.  v.  "  Escolland  ").  Toward  the  close  of  the  twelfth  century,  Jordan, 
son  of  Elias  Escolland,  witnessed  an  important  charter  (Ibid.,  124),  and 
during  the  vacancy  of  the  bishopric,  10-13  John,  Jordan  de  Dalden  paid  five 
marcs  at  the  exchequer  (Boldon  Book,  App.  xiv).  Dalden  was  the  estate 
of  the  Escolland  family  (Surtees,  Durham,  i.  4-5). 

*  As  late  as  1278  the  county  court  of  Chester  shows  traces  of  being  a  rep- 
resentative as  well  as  a  judicial  body.  This  fact  appears  in  two  interesting 
cases,  too  long  unfortunately  to  be  given  here,  and  not  very  fully  treated  in 
the  Abbreviatio.  See  Coram  Rege,  6  Edw.  I,  roll  38,  m.  i  dorse,  m.  13 
dorse;  Abbrev.  Plac,  229b,  268  b;  Pollock  and  Maitland,  i.  536,  538-539; 
cf.  also  Stubbs,  ii.  227. 

8 


114  ^'^-^  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

assembly  was  the  representative  branch  of  the  plenus  comitatus 
down  to  the  thirteenth  century.  Later  a  great  deal  is  said  of 
the  various  activities  of  the  communitas  of  the  bishopric,  a  word 
which  was  applied  to  the  representative  meetings  of  the  county 
courts  in  other  shires  of  the  kingdom.  An  examination  of  this 
later  evidence  will  probably  not  lead  to  a  change  of  view  although 
it  will  show  us  a  good  deal  of  development. 

§  12.    Composition  and  Functions  of  the  Assembly. 

We  shall  consider  first  the  composition  of  this  body,  which 
may  be  called  the  assembly.  In  the  course  of  the  thirteenth 
century  the  attendance  at  the  ordinary  meetings  of  the  county 
court  diminished  very  considerably,  but  the  solemn  semi-annual 
meeting  was  full  and  representative.  Such  a  meeting,  however, 
required  a  special  summons.^  In  the  letters  patent  of  Bishop 
Kellaw  appointing  a  steward  of  the  palatinate  in  13 14,  that  offi- 
cer receives  authority  "  populum  dictae  libertatis,  pro  salvatione 
patriae,  quotiens  opportunum  videritis,  convocandi  et  convenire 
compellendi."  ^  Some  notion  of  what  was  implied  in  the  word 
*'  populum  "  in  this  connection  may  be  formed  from  the  fact  that 
in  1338  the  king,  desiring  a  grant  of  wool  from  the  palatinate, 
directed  the  Bishop  in  the  following  words  to  summon  the 
assembly  :  '*  Vos  rogamus  mandantes  quod  prelates,  abbates, 
priores,  comites,  barones,  milites  ac  alios  quos  noveritis  convo- 
candi, necnon  communitatem  libertatis  vestrae  Dunolmensis 
coram  vobis  apud  Dunolmum  ...  ad  certum  diem  .  .  .  venire 
faceritis."  ^  This  call  should  be  compared  with  the  writ  to  the 
sheriff  directing  him  to  summon  the  plenus  comitatus^  of  some 

1  Stubbs,  ii.  225  ;  Pollock  and  Maitland,  i.  522,  526,  534. 

2  Registrum,  ii.  686  ;  and  cf.  Ibid.,  iv.  384,  where  this  document  reappears 
as  a  pattern  in  a  letter-book  of  Bishop  Bury.  In  the  printed  Register  it 
reads  "salvatione  propria;"  but  a  reference  to  the  original  (now  in  the 
Record  Office,  i.  fol.  40  b)  shows  that  the  word  "pra"  has  been  incorrectly 
extended.  Probably  Sir  Thomas  Hardy  did  not  notice  the  mark  of  contrac- 
tion over  the  "  a,"  and,  seeing  that  the  regular  extension  would  give  the  un- 
grammatical  "  patria,"  assumed  that  the  scribe  had  made  a  slip.  In  the  copy 
in  Bishop  Bury's  letter-book,  however,  the  word  has  been  correctly  extended. 

*  Registrum,  iv.  227. 


§12]  FUNCTIONS  OF  THE  ASSEMBLY,  n^ 

shire ;  which  in  substance  differs  only  in  the  addition  of  arch- 
bishops and  bishops,  and  the  substitution  for  "  communitas " 
of  "  liberi  tenentes,"  and  the  usual  representatives  of  vill  and 
borough.^  The  word  communitas  appears  again  and  again  and 
is  used  interchangeably  with  the  phrases  populus  libertatis^  bodies 
gentz  de  la  fraunchise,  and  illi  de  episcopatu  ;  ^  what,  then,  can  it 
mean  but  the  freeholders  of  the  bishopric  who  had  the  right  or 
duty  of  attending  the  assembly  ?  ^ 

The  peculiar  conditions  of  the  bishopric  increased  the  induce- 
ment to  attend  these  meetings,  ior  every  man's  interest  in  re- 
spect to  his  liberty  and  his  purse  was  at  stake ;  not  mediately, 
as  in  other  counties  which  returned  members  to  parliament,  but 
directly,  for  every  one  present  would  probably  have  at  least  a 
voice  in  the  proceedings.  If  this  had  been  a  body  that  existed 
only  for  the  purpose  of  assenting  to  the  will  of  the  Bishop,  the 
theory  that  it  was  attended  scantily  and  only  by  those  who  were 
obliged  to  come,  would  be  admissible.  But  from  the  moment 
when  it  is  found  taking  independent  action,  checking  and  con- 
trolling the  Bishop  or  dealing  with  him  on  its  own  initiative,  this 
view  becomes  impossible.  Evidence  of  such  action  will  pres- 
ently be  laid  before  the  reader. 

Of  the  organization  of  the  assembly  very  little  can  be  said. 
The  Bishop  had  his  concilium  intimumy  composed  of  his  house- 
hold, the  officers  of  the  palatinate,  and  certain  other  persons, 
and  this  body  was  present  at  the  meetings  of  the  assembly,*  but 
there  is  no  reason  to  believe  that  there  was  any  bi-cameral  ar- 
rangement. There  is  scarcely  any  evidence  pointing  to  the  size 
of  the  body,  but  it  could  not  have  been  large.  The  area  of  the 
bishopric  was  limited,  and  the  population  was  probably  very 

1  Bracton,  fol.  109  b,  ii.  188. 

2  These  cases  will  come  before  us  in  the  course  of  the  present  discussion. 

•  This  trenches  on  the  disputed  point  of  the  composition  of  the  full  county- 
court.  Stubbs  contended  that  it  was  composed  of  the  freeholders  of  the 
county,  as  against  the  view  that  it  was  restricted  to  the  minor  tenants-in- 
chief.  Professor  Maitland,  by  demonstrating  the  relation  of  suit  and  tenure, 
has  demolished  the  second  theory,  without  altogether  accepting  the  first  (see 
Stubbs,  ii.  246-247 ;  Pollock  and  Maitland,  i.  522-529).  The  case  in  Durham 
was  different. 

*  For  the  Bishop's  council,  see  below,  §§  13-15. 


Il6  THE  ASSEMBLY  AND   THE   COUNCIL,        [Ch.  IV. 

sparse.^  With  regard  to  procedure,  methods  of  deliberation, 
voting,  and  the  like,  we  are  unfortunately  quite  ignorant ;  it  is 
probable,  however,  that  when  the  assembly  was  acting  inde- 
pendently, particularly  in  opposition  to  the  Bishop,  very  little 
form  would  be  observed.  On  the  other  hand,  an  ordinary  meet- 
ing, transacting  business  proposed  by  the  Bishop  or  his  council, 
would  probably  be  directed  by  some  members  of  the  latter  body 
and  may  well  have  followed  the  forms  observed  in  the  national 
parliament,  with  which  of  course  the  Bishop,  and  probably  some 
of  his  councillors  as  well,  would  be  familiar. 

We  pass  now  to  a  consideration  of  the  functions  of  the  assem- 
bly in  the  government  of  the  palatinate.  Its  greatest  activity 
was  in  fiscal  matters.  The  palatinate  was  altogether  freed  from 
ordinary  royal  taxation ;  the  king  could  levy  nothing  there  ex- 
cept through  the  Bishop  and  by  his  leave.^  This  exclusion, 
however,  did  not  extend  to  the  clergy,  who  were  taxed  sepa- 
rately. When  the  king  applied  to  the  Bishop  for  financial  aid 
the  latter  obtained  leave  from  the  communitas  to  levy  what  was 
required ;  but  in  the  course  of  the  fifteenth  century  this  practice 
was  dropped.  In  1225  the  people  of  Haliwerfolc  granted  the 
king  a  tax  on  movables,  but  there  are  no  particulars  about  the 
manner  of  granting  or  raising  this  tax.^  In  1338  Edward  III 
wrote  to  the  Bishop  informing  him  that  parUament  had  granted 
him  one  half  the  wool  of  the  kingdom  to  meet  the  pressing 
necessities  with  which  he  was  then  confronted.  The  Bishop 
was  accordingly  directed  to  summon  the  great  men  and  com- 
mons of  his  liberty,  and,  having  explained  to  them  the  great 
dangers  of  the  present  war  and  the  necessity  for  the  defence  of 
the  kingdom,  to  invite  them  to  grant  to  the  king  the  half  of 
their  wool  in  like  manner  as  the  rest  of  the  kingdom  had  done. 
This  request  was  complied  with.*     In  1374  the  king  raised  a 

1  The  present  county  contains  loii  square  miles;  except  for  the  loss  of 
outlying  districts  in  Northumberland  and  Yorkshire,  its  boundaries  have  not 
altered  since  the  thirteenth  century  (Boyle,  Durham,  i.).  The  assessment  of 
the  poll-tax  in  1377  gives  a  population  of  51,083  for  the  counties  of  Durham 
and  Chester  together,  but  Professor  Rogers  calls  this  "  a  very  large,  perhaps 
excessive,  estimate"  (Six  Centuries  of  Work  and  Wages,  120). 

2  See  below,  §  37.  «  Rot.  Lit.  Claus.,  9  Hen.  Ill,  ii.  75  b. 
*  Registrum,  iv.  225-231. 


§12]  FUNCTIONS  OF  THE  ASSEMBLY.  ny 

subsidy  by  a  proportionate  levy  on  every  parish  in  England. 
The  parishes  of  the  bishopric  paid  along  with  the  rest ;  the  tax 
was  proportioned  and  collected  by  knights  of  the  palatinate 
under  the  Bishop's  commission,  and  the  assent  of  the  assembly 
was  sought  and  obtained.  This  seems  to  have  been  regarded 
as  an  exceptional  case,  for  an  act  of  indemnity  was  passed  stat- 
ing that  the  men  of  the  liberty  had  made  this  grant  to  the 
king  and  allowed  the  money  to  be  collected  of  their  own  free  will 
and  in  consideration  of  the  king's  great  necessities.^ 

In  1435  parliament  granted  the  king  a  subsidy,  to  be  assessed 
according  to  a  somewhat  elaborate  arrangement  on  all  free- 
holds in  the  kingdom.  In  January,  1436,  the  substance  of 
this  act  was  transmitted  to  Bishop  Langley  by  royal  letters 
patent,  with  directions  to  issue  commissions  to  his  officers  to 
assess  the  tax  in  the  prescribed  fashion  within  the  palatinate. 
In  March  of  the  same  year  the  Bishop  issued  the  required  com- 
missions.2  In  February,  1437,  ^^  obtained  from  the  king  a  letter 
of  indemnity  for  this  tax,  in  which  the  king  explained  that  it 
had  been  suggested  by  certain  members  of  his  council  that  the 
subsidy  would  be  paid  in  Durham,  that  therefore  he  had  directed 
his  letters  with  regard  to  collecting  it  to  certain  persons  there. 
These  letters,  however,  were  not  yet  formally  delivered,  because 
the  king  was  informed  that  the  men  of  the  liberty,  having  regard 
to  the  generosity  of  the  rest  of  the  kingdom,  would  of  their  own 
free  will  grant  to  the  king  a  sum  of  money  not  only  equal  to  but 
exceeding  the  amount  of  the  subsidy.  The  king  therefore,  un- 
willing that  such  a  gift  should  be  drawn  into  a  precedent  to  the 
injury  of  the  liberties  of  the  bishopric,  had  provided  that  such 
a  gift  or  concession  should  never  be  used  as  a  precedent  for  fur- 
ther demands.^  The  details  of  this  transaction  are  a  little 
obscure,  but  in  all  probability  the  communitas  of  the  bishopric 
declined  to  pay  unless  its  consent  were  obtained  and  the  conse- 

1  Rot.  Pari.,  48  Edw.  Ill,  ii.  App.  461,  No.  135;  Rot.  ii.  Hatfield,  ann. 
28,  m.  5,  curs.  31 ;  Scriptores  Tres,  App.  No.  cxxv. 

2  Rot.  C.  Langley,  ann.  30,  m.  10,  curs.  36  (a  very  long  entry  under  the 
rubric  "  Commissio  ad  inquirendum  de  quodam  subsidio  pro  domino  rege," 
etc.). 

'  Rot.  iii.  Nevill,  ann.  15  Hen.  VI,  m.  12,  curs.  44. 


Il8  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

quences  of  its  liberality  guarded  against.  The  king  agreed,  but 
confronted  the  people  with  the  dilemma  of  saving  their  dignity 
at  the  expense  of  their  purse. 

The  tendency  here  is  quite  apparent :  in  respect  to  royal  tax- 
ation the  consent  of  the  palatine  assembly  is  becoming  a  for- 
mality after  the  fact.  In  1449  parliament  dispensed  with  the 
formality  and  granted  the  king  a  subsidy  to  be  raised  through- 
out the  kingdom,  without  regard  to  previous  exemptions  or  im- 
munities. The  act  was  transmitted  to  the  Bishop  with  directions 
that  the  money  should  be  raised  by  his  sheriff  and  constable. 
This  document  was  entered  on  the  palatine  chancery  roll  imme- 
diately after  a  transcript  of  the  letter  of  indemnity  which  the 
king  had  granted  to  Bishop  Langley,  and  the  ineffectual  protest 
of  this  conjunction  is  eloquent  of  the  change  which  had  occurred 
in  the  government  of  the  palatinate.^ 

Attention  must  now  be  directed  to  the  fiscal  relations  of  the 
assembly  and  the  Bishop.  The  government  of  the  palatinate 
was  economical  and  the  Bishop's  personal  endowment  ample. 
The  great  expense  of  an  army  was  largely  avoided  by  the  use  of 
commissions  of  array.  Under  these  circumstances  the  occasion 
for  direct  taxation  in  the  palatinate  would  only  arise  in  extraor- 
dinary cases  when  the  Bishop  found  himself  unable  to  meet 
some  pressing  necessity.  It  is  clear  that  as  early  as  1302  the 
consent  of  the  communitas  of  the  palatinate  was  necessary  for 
raising  direct  contributions  either  in  money  or  in  kind.  Thus 
in  the  petition  which  the  commonalty  of  the  bishopric  presented 
to  the  king  in  1302,  it  requested  that,  in  accordance  with  the 
usage  of  the  kingdom,  no  carriage  —  u  e,  forced  contributions 
of  horses,  carts,  and  labor  —  should  be  required  of  free  men 
without  certain  grant,  except  in  the  case  of  those  who  held  their 
lands  at  such  service.  In  the  charter  which  as  a  result  of  this 
petition  was  issued  by  the  Bishop,  he  granted  that,  except  in 
time  of  war,  no  carriage  should  be  taken  without  certain  grant.^ 
This  action  shows  clearly  enough  the  sense  of  the  community 
that  it  should  be  consulted  when  direct  contributions  were  to  be 
taken.     That  the  Bishop  conceived  that  he  had  a  right  to  raise 

1  Rot.  iii.  Nevill,  ann.  28  Hen.  VI,  m.  12,  curs.  44. 
*  Registrum,  iii.  43,  64. 


§12]  FUNCTIONS   OF   THE  ASSEMBLY,  II9 

or  demand  such  contributions  appears  from  a  passage  in  a  docu- 
ment of  the  year  13 14;  this  was  the  Bishop's  commission  for  the 
steward  of  the  palatinate,  which  has  already  been  noticed.  The 
passage  reads  as  follows :  **  dantes  vobis  potestatem  plenariam 
populum  dictae  libertatis,  pro  salvatione  patriae,  quotiens  oppor- 
tunum  videritis,  convocandi,  et  convenire  compellendi,  collectas 
imponendi  et  levandi,"  ^  etc.  This  is  an  admission  that  imposts, 
although  they  might  be  proposed  by  the  Bishop  or  his  steward, 
might  not  be  collected  without  the  assent  of  the  populus.  This 
fact  appears  more  fully  in  two  later  cases. 

In  1344  Bishop  Bury  issued  a  commission  to  seven  persons  to 
collect,  in  the  Darlington  ward,  a  proportionate  amount  of  the 
general  tax  about  to  be  raised  in  the  palatinate.  It  had  been 
determined  by  the  common  counsel  and  unanimous  consent  of 
the  communitas  to  purchase  a  truce  with  the  Scots  for  the  sum 
of  one  hundred  and  sixty  pounds.  This  money,  along  with  a 
sum  sufficient  to  meet  the  expenses  of  collecting  and  transmit- 
ting it  to  Scotland,  was  to  be  assessed  and  raised  according  to 
an  apportionment  established  by  former  practice  in  similar  cases 
and  now  ratified  by  the  consent  of  the  communitas.  The  Bishop 
therefore,  in  pursuance  of  his  duty  to  execute  this  concession 
and  assessment,  issued  his  commissions  for  the  four  wards  of 
Durham  and  the  two  of  Sadberg.^  Grants  like  this  must  have 
been  fairly  frequent  in  the  earlier  history  of  the  palatinate, 
for  the  assessment  of  each  district  was  evidently  a  matter  of 
common  knowledge.  The  earlier  records  of  the  palatinate, 
the  loss  of  which  is  so  frequently  felt  in  the  course  of  this 
study,  would  no  doubt  have  furnished  many  similar  cases  of 
earlier  date. 

In  1348  the  Bishop  obtained  a  grant  of  four  hundred  marks 
from  the  notables  and  community  of  the  liberty,  in  recompense 
for  his  pains  and  expense  in  preserving  the  franchise  of  the 
palatinate  against  the  encroachments  of  the  king;  to  this  grant 
was  joined  a  petition  indicating  the  persons  whom  the  assembly 
wished  to  have  the  Bishop  appoint  for  the  assessment  and  col- 

^  Registrum,  ii.  686.     The  change  of  "  propria  "  to  "  patriae  "  (noticed 
above,  p.  114,  note  2)  has  been  made  here. 
2  Ibid.,  iv.  273-277. 


I20  THE  ASSEMBLY  AND    THE   COUNCIL.       [Ch.  IV. 

lection  of  the  money.^  This  is  the  last  instance  in  the  surviving 
records  of  a  money  grant  to  the  Bishop;  probably  there  were 
few  others,  if  any.  Except  in  cases  of  extraordinary  necessity, 
which  usually  took  the  form  of  an  invasion,  the  Bishop  was  well 
able  "  to  live  of  his  own."  The  development  of  the  royal  army, 
which  in  the  fifteenth  century  led  to  a  practice  by  which  the 
palatine  array  was  managed  and  paid  by  the  king's  officers,^ 
relieved  the  Bishop  of  the  pressure  of  this  special  necessity.  It 
is  clear,  however,  that  the  palatine  assembly  had  the  power  of 
self-taxation,  and  even  a  certain  control  over  the  execution  of 
the  grants  that  it  made.  This  point  receives  fuller  illustration 
from  a  series  of  cases  in  which  the  assembly  taxed  itself,  not  at 
the  request  of  the  Bishop  but  on  its  own  initiative  and  for  its 
own  ends.  An  early  instance  of  this  action  is  to  be  found  in 
the  purchase  of  certain  liberties  from  King  John  during  the 
vacancy  of  the  see,  a  transaction  which  has  been  already  suffi- 
ciently considered.^ 

In  1302  nearly  all  the  knights  and  freeholders  of  the  bishopric, 
under  the  leadership  of  Ralph  Nevill  and  John  Marmaduke, 
conceiving  themselves  injured  by  the  Bishop,  agreed  to  appeal 
at  their  common  expense  to  the  king  in  parliament.*  The  details 
of  this  affair,  which  amounted  to  a  constitutional  rebellion  on  a 
small  scale,  will  be  noticed  later.^  In  the  mean  time  it  is  suffi- 
cient to  point  out  that  the  charter  which  was  obtained  from  the 
king  was  addressed  to  the  leaders  of  the  movement  by  name 

1  "  Thomas  Episcopiis  Dunelmensis  dilectis  sibi  Roberto  de  Brakenbury, 
Johanni  de  Brunnynghille,  et  Johanni  Randolf,  salutem.  Cum  magnates, 
proceres,  et  tota  communitas  regiae  libertatis  nostrae  Dunelm.,  pro  magnis 
laboribus  et  variis  expensis  [quos]  erga  dominum  regem  Angliae  illustrem 
pro  dicta  libertate  illaesa  observanda  pluries  opposuimus,  nobis  quadringentas 
marcas  .  .  .  concesserunt,  et  per  petitionem  suam  nobis  supplicaverunt  ut 
dilectos  et  fideles  nostros  ad  summam  praedictam  taxandam  .  .  .  faceremus 
assignare  :  "  Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30. 

2  See  below,  §  40. 

8  Above,  pp.  1 1 2-1 1 3. 

*  "  Adhaerebant  tamen  eis  [Nevill  and  Marmaduke]  fere  omnes  de  epis- 
copatu  milites  et  liberi  tenentes ;  et  sumptibus  eorum  communibus  prosecuti 
sunt  negotia  sua  in  parliamento  et  curia  Regis :  "  Graystanes,  cap.  xxiii,  in 
Scriptores  Tres,  ^6. 

6  Below,  p.  128  ff. 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY  121 

''  and  the  others  of  the  commonalty  of  the  franchise  of  the 
Bishop  of  Durham."  ^  There  can  be  little  doubt,  then,  that 
this  action  was  taken  by  the  assembly.  In  131 1,  just  after  the 
election  of  Bishop  Kellaw,  the  king  prepared  to  send  his  jus- 
tices into  the  bishopric  to  hold  a  general  eyre.  The  men  of  the 
liberty,  wishing  to  avoid  the  inconvenience  and  possible  damage 
of  the  eyre,  induced  the  Bishop-elect  to  compound  with  the  king, 
promising  that  they  would  repay  to  him  whatever  he  might  spend 
for  this  purpose.  Kellaw  paid  the  king  a  thousand  marks, 
and  the  visitation  was  given  up,  but  the  men  of  the  bishopric 
declined  to  reimburse  the  Bishop.^ 

The  pontificate  of  Bishop  Kellaw  was  disturbed  by  frequent 
and  severe  invasions  of  the  Scots,  and,  since  the  Bishop  was 
often  absent  for  reasons  connected  with  the  king's  dislike  of 
him,  the  responsibility  of  buying  off  these  intruders  and  the 
problem  of  raising  money  for  that  purpose  often  fell  on  the 
assembly.  In  13 12  the  Scots  fearfully  ravaged  the  palatinate 
while  the  Bishop  was  in  London,  whereupon  the  people  of  the 
bishopric  purchased  a  truce  with  their  enemies  for  the  sum  of  a 
thousand  marks,  to  be  paid  in  several  instalments.  Four  gen- 
tlemen of  the  palatinate  were  appointed  to  carry  out  with  the 
king  of  Scots  the  arrangements  which  had  been  initiated  by  the 
prior  of  Durham.  The  people  of  the  liberty  of  Barnard  Castle 
—  which,  it  will  be  remembered,  was  held  adversely  to  the  Bishop 
by  the  earl  of  Warwick  —  refused  to  pay  their  share  ;  but  on  the 
Bishop's  return  to  his  province  he  wrote  to  the  earl  requesting 
him  to  require  his  tenants  to  bear  their  part  of  the  burden,  since 
Barnard  Castle  had  been  saved  by  the  action  of  the  commonalty.^ 
In  1 3 14  a  similar  arrangement  was  made  between  the  earl  of 
Moray,  acting  in  behalf  of  the  king  of  Scots,  and  the  prior,  acting 
for  the  commonalty  of  the  bishopric.  In  this  case  a  truce  was 
obtained  from   March,  13 14,  until  January,  13 15,  for  the  sum 

^  Edward  .  .  .  Roy  d'Engleterre  .  .  .  k  ses  cheres  et  feaux  Mons.  Randuf 
de  Nevell,  Mons.  Johan  le  fuiz  Marmeduc  .  .  .  et  as  autres  de  la  communaute 
de  la  fraunchise  del  Evesche  de  Duresme  Saluz,"  etc. :  Surtees,  Durham, 
i.  p.  cxxviii. 

2  Graystanes,  cap.  xxxiv,  in  Scriptores  Tres,  93. 

^  Graystanes,  cap.  xxv,  Ibid.,  94;  Registrum,  i.  191,  204. 


122  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

of  eight  hundred  marks.  The  prior  bound  himself  for  the 
payment  of  this  money  under  the  seal  of  the  chapter,  and  the 
commonalty  gave  hostages.^ 

The  record  of  a  case  of  this  sort  in  the  year  1 3 1 5  is  particularly 
rich  in  details  which  illustrate  the  point  in  hand.  In  that  year  the 
Scots  made  an  unusually  daring  and  successful  raid,  sweeping 
across  the  greater  part  of  the  palatinate  and  up  to  the  very  gates 
of  Durham  itself,  and  almost  capturing  the  prior,  who  was  at 
Beaurepaire,  the  country  seat  of  the  convent.^  The  Bishop  at  this 
time  seems  to  have  been  absent,  but  such  members  of  the  com- 
monalty of  the  bishopric  as  were  then  at  Durham  —  and  it  is  ex- 
tremely probable  that  a  large  number  would  have  been  driven  to 
take  refuge  in  the  city  —  assembled,  and  determined  to  take  meas- 
ures for  the  protection  of  the  palatinate.  They  first,  however, 
agreed  that  every  man  should  take  an  oath  to  abide  by  whatever 
action  might  be  determined  upon  for  their  common  welfare.  It 
was  decided  to  purchase  a  truce  with  the  Scots,  but  it  appeared 
that  the  sum  agreed  upon  for  the  payment  would  not  be  immedi- 
ately forthcoming.  It  was  arranged  therefore  that  the  money 
should  be  collected  by  a  house-to-house  visitation  in  Durham  and 
in  as  much  of  the  neighborhood  as  was  available  for  the  purpose. 
Accordingly,  two  persons  were  appointed,  with  power  practically 
to  get  the  money  as  best  they  might,  but  on  the  understanding 
that  their  action  was  provisional,  and  that  those  who  had  been 
laid  under  contribution  should  be  reimbursed  so  soon  as  the  sum 
could  be  properly  levied  on  the  commonalty. 

William  de  Kellaw  and  David  de  Rotherbiry,  having  been 
duly  appointed  and  sworn,  came  in  the  course  of  their  visitation 
to  the  house  of  William  de  Heberne,  one  of  those  who  had  taken 
the  original  oath  to  abide  by  the  action  of  the  commonalty.  Here 
they  discovered  a  quantity  of  money,  which  they  seized  in  spite  of 
William's  protest.  Afterward  William  sued  the  two  collectors  in 
the  palatine  courts,  and  obtained  judgment.  The  court,  among 
other  reasons  for  its  decision,  said  that  there  was  no  one  against 
whom  William  could  recover  except  the  collectors.  The  case 
came  before  the  king's  justices  on  a  writ  of  error,  and  the  judg- 

^  Scriptores  Tres,  App.  No.  xciv. 

2  Graystanes,  cap.  xxxvi,  in  Scriptores  Tres,  96. 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY.  123 

ment  was  reversed  on  the  assignment  of  a  number  of  errors. 
This  court  held  that  William's  oath  to  abide  by  the  action  of 
the  community,  together  with  the  authority  granted  by  the 
community  to  the  collectors,  justified  the  latter  in  taking 
William's  money ;  and,  further,  that  it  had  been  wrongly  sug- 
gested that  William  was  without  remedy  unless  he  could 
recover  against  the  collectors,  for,  by  reason  of  the  determin- 
ation and  concession  of  that  part  of  the  commonalty  which 
was  assembled  at  Durham,  an  action  would  lie  against  the 
entire  commonalty.^ 

Although  this  case  is  exceptional,  the  principle  involved, 
namely,  that  the  commonalty  gathered  or  represented  in  the 
assembly  or  shire-moot  had  the  right  of  self-taxation,  is  quite 
regular.  The  disposition  of  the  palatine  court  to  disregard  the 
commonalty  has  less  significance  than  would  at  first  appear, 
for  the  original  action  was  brought  before  the  king's  justices 
appointed  for  the  palatinate  in  a  time  of  vacancy,  and  they  would 
naturally  be  unfamiliar  with  local  institutions. 

In  1334  the  commonalty  of  the  bishopric  compounded  with 
the  king  for  the  settlement  of  their  debts  at  his  exche- 
quer.2  Whatever  may  have  been  due  from  them  was  no 
doubt  incurred  during  the  vacancy  of  the  see  in  the  pre- 
ceding year.  Before  the  accession  of  Bishop  Hatfield  the 
king  again  threatened  to  hold  a  general  eyre  in  the  palati- 
nate, and  the  commonalty  again  procured  relief  from  the  visi- 
tation  at   a   cost  of  four  hundred  pounds.     This  money  was 

^  The  record  was  examined  at  Michaelmas,  132 1 .  The  jury  returned  that 
all  the  members  of  the  community  of  the  bishopric  at  Durham  "ordinarunt 
quod  unusquisque  illorum  praestaret  sacramentum  corporale  stare  ordinationi 
quae  .  .  .  contigeret  ordinari."  They  agreed  to  make  a  fine,  and,  having 
no  money,  "praesto  ordinarunt  quod  quidam  de  communitate  praedicta  irent 
de  domo  in  domum  .  .  .  et  perscrutarent  ubi  denarii  essent  inde  positi ;  et  ubi- 
cunque  denarii  hujusmodi  invenirentur  caperentur  .  .  .  quousque  levari  pos- 
sent  de  communitate  praedicta  et  satisfieri  illis  quorum  denarii  sic  capiendi 
fuerunt."  The  words  of  the  king's  justices  with  regard  to  the  responsibility 
of  the  whole  community  are  also  worth  noting :  "  Cum  illud  [/.  e.  recovery] 
habere  posset  directe  versus  communitatem,  virtute  ordinationis  et  conces- 
sionis  praedictarum."     (Abbrev.  Plac,  336  b). 

2  Calendar  of  Patent  Rolls,  1330-1334,  p.  528. 


124  THE  ASSEMBLY  AND    THE   COUNCIL.       [Ch.  IV. 

assessed  and  collected,  however,  by  persons  commissioned  by 
the  new  Bishop.^ 

The  assembly,  then,  taxed  itself  at  the  request  of  the  king  and 
of  the  Bishop.  But  in  a  less  formal  way  it  raised  money  for 
purposes  of  its  own,  notably  that  of  bringing  pressure  to  bear 
on  the  Bishop  either  by  purchasing  the  king's  aid  or  by  organ- 
ized action  on  the  part  of  the  community.  This  sort  of  action 
may  be  matched  in  the  county  courts  of  many  of  the  other  shires, 
which  dealt  with  a  good  deal  of  fiscal  business  and  at  that  point 
"  most  closely  approached,  before  they  actually  touched,  the  na- 
tional council."  2  A  good  instance  is  the  refusal,  in  1220,  of  the 
Yorkshire  shire-moot  to  assent  to  a  grant  made  to  the  king  in 
the  national  council,  and  its  readiness  to  pay  if  the  king  should 
summon  it  and  make  a  personal  request.^  Dr.  Stubbs  considers 
this  a  "  clear  proof  that  not  merely  the  assessment  but  the  con- 
cession of  a  grant  was  regarded  as  falling  within  the  lawful  power 
of  a  local  assembly."  * 

Now,  it  is  known  that  the  acknowledgment  of  this  power  was 
a  step  toward  the  organization  of  parliamentary  government, 
which,  partly  by  reason  of  the  obvious  inconvenience  of  dealing 
separately  with  many  local  assemblies,  followed  close  on  that 
acknowledgment.  The  community  of  Durham,  however,  did  not 
obtain  parliamentary  representation  until  the  Stuart  restoration;^ 
and  yet,  as  we  have  seen,  both  the  king  and  the  Bishop,  when 
they  wished  to  raise  a  tax,  were  obliged  to  obtain  the  consent  of 
that  community.  This  consent  was  given  in  a  local  assembly, 
which  under  the  same  name  engaged  in  various  other  activities. 
We  can  thus  scarcely  avoid  the  conclusion  that  the  palatine 
assembly  and  the  Durham  shire-moot  were  identical. 

The  functions  of  the  assembly  in  the  department  of  legislation 
were  extremely  rudimentary.     In  the  first  place,  the  principle  is 

^  The  Bishop  commissioned  his  chancellor  and  several  other  persons 
"ad  taxandum,  levandum,  colligendum  et  recipiendum  quatuor  centum 
libras  sterlingas  domino  nostro  regi  Angliae,  nuper  per  communitatem  nos- 
trae  regiae  libertatis  Dunelmensis  concessas,  pro  relaxatione  itineris  justicia- 
riorum  suorum,  post  mortem  bonae  memoriae  Ricardi  Episcopi  Dunelmensis 
ultimi  praedecessoris  nostri :"   Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30. 

2  Stubbs,  ii.  232.  *  Ibid.,  233-234.  •*  Ibid.,  233. 

s  Bean,  Parliamentary  Representation  of  the  Northern  Counties,  97. 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY.  125 

clear  that,  unless  there  were  special  provision  to  the  contrary, 
all  general  legislation  applied  to  the  palatinate  as  well  as  to  the 
rest  of  the  kingdom.  Thus,  the  people  once  complained  to  the 
king  that  their  Bishop  had  violated  the  provisions  of  Magna 
Carta.^  Edward  I's  redaction,  in  1301,  of  the  great  charter  and 
the  charter  of  the  forests  appears  on  Bishop  Kellaw's  register 
in  1316.^  The  fact  that  the  Bishops  issued  licences  to  amortize 
land  is  sufficient  proof  that  the  statute  of  mortmain  was  in  force 
in  the  palatinate.  The  same  is  true  of  the  statute  of  Winchester, 
for  in  accordance  with  its  provisions  Bishop  Bury  issued  com- 
missions for  a  levy  of  troops.^  Edward  IIFs  statute  of  laborers 
is  entered  on  Bishop  Hatfield's  chancery  roll,*  and  there  is  a 
record  of  a  pardon  granted  to  a  person  who  had  made  default  in 
an  action  brought  against  him  under  this  statute.^  New  actions 
authorized  by  statute  extended  to  Durham,^  and  the  adminis- 
tration of  justice  there  followed  the  development  that  took  place 
in  the  kingdom ;  —  as,  for  example,  in  the  case  of  the  custody 
of  the  lands  of  idiots,  which  has  already  been  noticed." 

Only  a  very  few  instances  have  been  chosen  from  the  large 
number  that  are  available  in  the  sources,  but  the  point  is  clear 
enough.  It  is  well  brought  out  in  the  words  of  a  document 
by  which,  in  1455,  Bishop  Nevill  proclaimed  the  action  of  parlia- 
ment in  appointing  the  duke  of  York  protector  of  the  realm : 
*'  Nos  omnia  et  singula  que  in  parliamento  domini  Regis  rite 
acta  sunt,  debite  executionem  demandari  volentes,"  etc. ;  then 
follows  the  proclamation.^  Probably  general  legislation  was 
not  thus  applied  before  the  thirteenth  century,  for,  as  we  shall 
see,  the  legal  changes  of  Henry  H's  reign  did  not  go  into  force 

1  Registrum,  iii.  41.  2  ibid.,  ii.  1116-1117. 

*  Ibid.,  iv.  269  £f.  See  also  Rot.  Fordham,  ann.  4,  m.  4  dorse,  curs.  32 ; 
Rot.  A.  Langley,  ann.  3,  m.  3  dorse,  and  ann.  9.  m.  11  dorse,  curs.  34. 

^  Rot.  i.  Hatfield,  ann.  6,  m.  6  dorse,  curs.  30. 

*  Rot.  ii.  Hatfield,  ann.  34,  m.  1 1,  curs.  31.  See  also  a  special  commission 
to  the  palatine  justices  to  execute  this  statute  in  1408,  Rot.  A.  Langley,  ann.  2, 
m.  4,  curs.  34. 

«  See  below,  §  34.  "^  Above,  §  6. 

8  Rot.  A  A.  Nevill,  ann.  17,  m.  20  dorse,  curs.  47.  Cf.  Ibid.,  ann.  15, 
m.  19  (a  precept  to  the  sheriff  regarding  the  enforcement  of  the  statute  of 
Merton,  cap.  x). 


126  THE  ASSEMBLY  AND    THE   COUNCIL.       [Ch.  IV. 

in  the  palatinate  without  question,^  and  the  Assize  of  Clarendon, 
although  it  was  intended  to  apply  to  all  franchises  "  and  even  to 
the  honor  of  Wallingford,"  was  executed  in  Durham  only  under 
a  charter  of  indemnity  from  the  king.^  The  validity  in  the  palat- 
inate of  general  legislation  may,  then,  be  considered  to  emanate 
from  the  parliamentary  sanction  of  such  legislation,  for  the 
authority  of  parliament  was  never  questioned  and  was  often 
invoked  both  by  the  Bishop  and  the  people  of  Durham.  The 
general  assumption  that  all  acts  of  parliament  would  bind  the 
people  of  Durham  as  well  as  those  of  the  rest  of  England, 
is  further  proved  by  the  fact  that  when  this  application  was 
not  intended  a  special  clause  to  that  effect  was  inserted  in 
the  act.^ 

Many  statutes  and  acts  of  parliament  were  transmitted  to  the 
Bishop  with  directions  that  he  should  cause  them  to  be  pro- 
claimed by  the  sheriff  in  full  meeting  of  the  county  court.*  This 
was  the  ordinary  method  of  publication  in  other  counties  of  the 
kingdom,  but  under  the  special  circumstances  it  is  possible  that  in 
Durham  the  process  had  a  more  extended  significance,  involving 
the  notion  of  assent  on  the  part  of  the  community.  At  any  rate, 
there  remained  to  the  palatine  assembly  only  the  possibility  of 
issuing  ordinances  or  bye-laws.   Something  of  this  sort  had  been 

1  Below,  §  1 6. 

2  Assize  of  Clarendon,  §  ii,  in  Stubbs,  "Select  Charters,  144;  Scriptores 
Tres,  App.  No.  xxxi. 

*  See,  for  example,  8  Edw.  IV,  cap.  ii,  Statutes,  ii.  428;  31  Eliz.  cap.  iv, 
Ibid.,  iv.  pt.  ii.  808. 

*  On  account  of  the  fragmentary  condition  of  the  Durham  records,  par- 
ticularly at  an  early  period,  it  is  not  certain  whether  this  was  regularly  done 
before  the  fifteenth  century  ;  probably,  however,  it  was  not.  The  earlier 
proclamations  are  mostly  of  royal  ordinances,  e.  g.  Edward  II's  prohibition 
of  tournaments  and  Edward  Ill's  ordinance  with  regard  to  provisors  (Letters 
from  Northern  Registers,  214;  Registrum,  iv.  308-309).  The  statutes  9  and 
27  Edw.  Ill  were  directed  to  be  proclaimed  in  Durham  (Statutes,  i.  274, 
344),  and  in  1455  one  of  Henry  VPs  statutes  was  sent  directly  to  the  sheriff 
of  Durham  for  that  purpose  (Rot.  BB.  Nevill,  ann.  17,  m.  20,  21  dorse, 
curs.  46;  Rot.  Pari.,  v.  394-396).  In  1536  a  number  of  printed  statutes 
were  sent  to  Bishop  Tunstall,  with  a  precept  for  their  publication  in 
churches,  abbeys,  etc.  (Rot.  ii.  Tunstall,  ann.  28  Hen.  VIII,  m.  9  dorse, 
curs.  78). 


§  12]  FUNCTIONS  OF   THE  ASSEMBLY.  127 

done  in  the  county  court  of  Northumberland/  and  a  similar  func 
tion  might  seem  to  be  implied  in  the  words  of  a  document  which 
has  already  been  noted.  This  is  Bishop  Kellaw's  commission 
to  his  steward  in  13 14,  and  the  passage  in  question  is  as  fol- 
lows :  **  dantes  vobis  potestatem  plenariam  populum  dictae  liber- 
tatis  pro  salvatione  patriae  .  .  .  convocandi,  et  .  .  .  rebelles,  si  qui 
fuerint,  contra  ordinata  pro  communi  utilitate  seu  contradictores, 
coercendi,"  ^  etc.  The  collocation,  shown  in  this  document,  of  an 
assembly  of  the  people  for  the  good  of  the  country  and  of  mat- 
ters ordained  for  the  common  welfare  is,  on  the  face  of  things, 
very  significant.  On  the  other  hand,  in  the  only  case  of  such 
local  regulations  in  the  palatinate  the  action  was  unquestionably 
taken  by  the  Bishop's  council,^  and  not  by  the  assembly.  Pos- 
sibly there  was  some  sort  of  ratification  or  assent  on  the  part  of 
the  assembly,  but  this  is  not  probable  ;  the  nearest  approach  to 
such  action  would  have  been  the  proclamation  of  the  new  ordi- 
nance in  a  meeting  of  the  assembly.  Thus  for  all  practical  pur- 
poses the  palatine  assembly  had  no  legislative  functions. 

We  are  dealing,  then,  with  a  body  devoid  of  legislative  power 
and  having  but  a  limited  control  of  the  spigot  of  taxation,  since 
the  Bishop  could  under  ordinary  circumstances  "live  of  his  own." 
To  what  extent  did  or  could  such  a  body  influence  the  poHcy  of 
the  Bishop  or  bear  a  part,  however  small,  in  the  government  of 
the  province }  The  regular  channels  through  which  the  national 
parliament,  when  it  came  into  being,  exerted  its  influence  on  the 
crown  were  not  open  to  the  palatine  assembly  in  its  relation  to 
the  Bishop.  On  the  other  hand,  Durham  was  by  no  means  so 
cut  off"  from  the  rest  of  England  as  to  be  unaffected  by  the 
forces  which  were  acting  on  the  English  constitution  in  the 
thirteenth  and  fourteenth  centuries.  The  difference  lies  in  this, 
that  the  extra-constitutional  collisions  of  the  crown  and  the 
estates  of  the  kingdom  in  the  thirteenth  century  produced  a 
mechanism  by  means  of  which  the  relations  of  the  contending 
parties  might  be,  and  were,  thenceforth  determined  regularly, 
and  their  share  in  the  government  of  the  country  allotted  in  like 

1  Northumberland  Assize  Rolls  (Surtees  Soc),  208-209;  Pollock  and 
Maitland,  i.  542. 

2  Registrum,  ii.  686.  »  Ibid.,  iv.  348  ff. ;  below,  §  14. 


128  THE  ASSEMBLY  AND    THE   COUNCIL.       [Ch.  IV. 

manner.  In  the  palatinate,  on  the  other  hand,  the  same  friction 
occurred  on  a  much  smaller  scale,  but  the  mechanism  was  never 
produced.  The  friction  would  no  doubt  have  greatly  increased 
during  the  fourteenth  century  if  the  Bishop's  subjects  had  not 
learned  how  to  exercise  a  certain  irregular  control  over  him ; 
moreover,  the  increasing  power  of  the  crown,  and  its  relation  to 
the  community  of  the  palatinate,  made  it  necessary  for  the 
Bishop  to  take  into  account  the  rights  or  interests  of  his  sub- 
jects. Such  evidence  of  this  development  as  we  have  must 
now  be  examined. 

In  1208  the  people  of  the  palatinate  forced  the  Bishop  to  ex- 
tend the  procedure  in  his  court  so  as  to  bring  it  into  line  with 
that  of  the  kingdom.  The  circumstances  under  which  this  was 
accomplished  are  fully  set  forth  in  another  part  of  this  work.^ 
In  1225  they  were  in  negotiation  with  the  king  for  a  grant  of 
certain  liberties,  which  they  probably  never  obtained.^  In  1300, 
when  Bishop  Anthony  Bek  was  in  the  thick  of  a  fierce  struggle 
with  the  prior  and  convent,^  he  was  confronted  with  an  organ- 
ized movement  on  the  part  of  his  subjects,  under  the  leadership 
of  two  great  northern  families,  much  resembling  the  movement 
which  led  to  the  grant  of  the  great  charter.  The  purpose  of  this 
rising  was  a  general  reform  of  the  government  of  the  palatinate, 
as  will  appear  in  the  consideration  of  the  charter  which  was 
eventually  obtained  from  the  Bishop.  The  immediate  pretext 
was  the  question,  then  vexing  the  kingdom,  as  to  feudal  service 
in  foreign  parts.  The  Bishop  had  twice  led  his  feudal  tenants 
into  Scotland  to  aid  the  king  in  his  wars  ;  from  the  second  ex- 
pedition they  returned  without  leave  and  were  imprisoned  by  the 
Bishop  at  Durham.  The  people  declared  that  they  held  their 
land  for  the  defence  of  the  body  of  S.  Cuthbert  and  were  under 
no  obligation  to  go  beyond  the  boundaries  of  the  palatinate,  the 
rivers  Tyne  and  Tees.* 

1  Above,  §  II.  a  Rot.  Lit.  Claus.,  9  Hen.  Ill,  ii.  1$  b. 

8  The  circumstances  of  this  trouble  are  detailed  below,  p.  24  f. 

*  "  Nam  Episcopus  hominesde  episcopatu  secum  coegerat  ire  in  guerram 
Scotiae  cum  equis  et  armis,  jam  bina  vice ;  et  cum  secunda  vice  redissent 
domum,  ab  eo  non  licentiati,  fecit  eos  apud  Dunelmum  incarcerari.  Quod 
ipsi  graviter  ferentes  fecerunt  se  partem  contra  Episcopum,  dicentes  se  esse 
Haliwerfolk  et  terras  suas  tenere  ad  defensionem  corporis  sancti  Cuthberti, 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY. 


129 


The  question  of  military  service  alone  would  probably  have 
been  insufficient  to  raise  such  a  tempest;  but,  as  in  1297,  when 
the  two  earls  refused  to  go  abroad,  so  now  there  was  a  larger 
interest  at  stake,  namely,  the  future  of  feudal  independence.^ 
Here  again,  as  was  so  often  the  case  in  English  history,  the  in- 
terested effort  of  a  single  class  to  defend  its  own  privileges  made 
for  general  liberty,  because  one  side  or  the  other,  the  crown  or 
the  baronage,  was  obliged  to  ally  itself  with  the  people.  In  this 
case  the  baronage  had  on  its  side,  against  the  Bishop,  the  church 
and  the  people.  Marmaduke,  the  leader  of  the  movement,  was 
a  good  example  of  a  feudal  baron,  being  a  fierce  fighter  and  a 
cruel  man.2  The  church,  personified  in  the  convent  of  Durham, 
had  assuredly  suffered  grievous  things  at  the  hands  of  the  Bishop, 
and  the  people  complained  that  he  had  made  innovations  which 
outrageously  curtailed  their  liberties.  It  is  significant  for  this 
last  point  that  while  Graystanes  speaks  of  the  rebels  as  "  fere 
omnes  de  episcopatu  milites  et  liberi  tenentes,"^  Heming- 
burgh,  the  only  other  writer  who  treats  of  these  events,  says 
"  insurrexerunt  in  eum  quasi  omnes  incolae  pro  libertatibus  suis 
defendendis."  * 

The  Bishop  was  little  alarmed  ;  for,  although  the  party  of  op- 

nec  debere  se  exire  terminos  episcopatus,  scilicet  ultra  Tynam  et  Teysam, 
pro  Rege  vel  Episcopo.  Et  hujus  dissentionis  capitales  erant  Ranulphus  de 
Nova  Villa  et  Johannes  Marmeduci.  Adhaerebant  tamen  eis  fere  omnes  de 
episcopatu  milites  et  liberi  tenentes : "  Graystanes,  cap.  xxiii,  in  Scriptores 
Tres,  76.     Cf.  above,  p.  22. 

^  See  Stubbs,  ii.  143-144.  "  The  spirit  that  had  inspired  him  [Glouces- 
ter] lived  in  the  two  earls,  who  by  his  death  were  left  almost  the  sole  relics 
of  the  great  nobility  of  feudalism,  and  the  last  inheritors  of  the  political  ani- 
mosities of  the  late  reign  :  "  Ibid.,  159. 

2  Marmaduke  was  with  Bek  at  the  siege  of  Dirlton  Castle,  in  1298.  Bek, 
despairing  of  success,  sent  him  to  the  king,  who  seems  to  have  relied  on  his 
violent  and  unscrupulous  character  to  carry  through  the  affair  successfully. 
Hemingburgh  (Chronicon,  ii.  175)  calls  him  "ille  strenuissimus  miles,"  and 
makes  Edward  address  him  as  "homo  crudelis." 

*  Graystanes,  cap.  xxiii,  in  Scriptores  Tres,  ^d. 

*  "  Coepitque  nova  facere  in  episcopatu,  et  inaudita  quaerere,  ita  quod  in- 
surrexerunt in  eum  quasi  omnes  incolae  pro  libertatibus  suis  defendendis  :  '* 
Walter  of  Hemingburgh,  ii.  217.  Cf.  the  complaint  of  "  les  bones  gentes  de 
la  fraunchise  de  Duresme,"  Registrum,  iv.  41,  61. 

9 


I30  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

position  had  appealed  to  the  king,  he  knew  himself  to  be  high 
in  the  royal  favor  and  anticipated  no  more  than  a  series  of  royal 
precepts  enjoining  him  to  leave  off  his  oppressions  and  govern 
justly,  under  pain  of  a  deprivation  which  would  never  be  accom- 
plished.^ Bek's  calculations,  however,  were  thrown  out  by  an 
unexpected  event.  In  February,  1 301,  in  parliament  at  Lincoln, 
formal  complaints  were  made  against  the  Bishop,  on  the  part  of 
the  church  by  the  prior,  who  had  but  recently  escaped  from  his 
imprisonment  at  Durham,  and  on  the  part  of  the  people  of  the 
bishopric  by  their  representatives.  In  the  course  of  the  proceed- 
ings the  king  asked  the  Bishop  whether  he  supported  the  crown 
as  against  the  two  earls  and  their  party.  Bek  made  the  memo- 
rable answer,  that  the  earls  were  laboring  for  the  profit  and  honor 
of  the  kingdom  and  the  king  and  that  he  held  with  them  there- 
fore, and  not  with  the  king  against  them.^  Edward  never  forgave 
this  frankness  and  made  the  Bishop  pay  heavily  for  his  words. 

In  the  mean  time  the  communitas  had  formulated  their  de- 
mands in  a  series  of  articles,  which  were  submitted  to  the 
Bishop.  The  king  sent  several  members  of  his  council  to  Dur- 
ham, accredited  to  the  free  tenants  and  whole  commonalty  of 
the  liberty,  to  direct  the  negotiation  on  his  behalf.  The  Bishop 
was  stubborn,  declining  to  concede  as  much  as  his  subjects 
thought  necessary,  whereupon  the  matter  was  adjourned  into 
parliament.^  No  agreement  could  be  reached  there,  and  on  the 
renewal  of  complaint  by  the  prior  and  people  the  king  in  July, 
1302,  seized  the  temporalities  of  the  see.*     Edward  had  more 

1  "  Deposueruntque  frequenter  ad  dominum  regem  multimodas  querelas, 
quaerentes  fieri  per  eum  justitiae  complementum,  nee  curavit  episcopus, 
propter  quod  dominus  rex  primo  rogans,  secundo  exhortans,  tertio  commi- 
nando  praecipiens  sub  poena  perdendae  libertatis,  scripsit  ut  ab  injuriis 
cessaret  et  populum  suum  juste  regeret  mode  consueto  :  "  Walter  of  Hem- 
ingburgh,  ii.  217. 

2  Graystanes,  cap.  xxv,  in  Scriptores  Tres,  "j^.  Bek  although  a  violent 
man  and  somewhat  inclined  to  vulgarity  and  bravado,  was  probably  quite 
sincere  in  administering  this  rebuke  to  the  king.  He  had  assumed  a  per- 
sonal responsibility  for  the  Confirmation  of  the  Charters,  and  doubtless  felt 
that  he  had  been  ill  treated.  See  Walter  of  Hemingburgh,  ii.  215  ;  Rishan- 
ger,  Chronica,  186;  Stubbs,  ii.  160  ff. 

2  Registrum,  iii.  41  ;  Scriptores  Tres,  App.  No.  Ixxx. 
4  Graystanes,  cap.  xxvi,  in  Scriptores  Tres,  81. 


§12]  FUNCTIONS  OF  THE  ASSEMBLY.  131 

justification  for  this  act  than  lay  in  his  quarrel  with  Bek  the 
year  before.  In  the  hands  of  that  prelate  the  liberties  of  the 
palatinate  had  dangerously  expanded ;  he  had  enormous  wealth 
and  a  high  ambition,  which  was  destined  sooner  or  later  to  bring 
him  into  collision  with  Edward's  anti-feudal  policy.^  The  imr 
portant  diminution  of  the  palatinate,  when  it  was  finally  returned 
to  Bishop  Bek,  has  already  been  noticed.^  In  November,  1302, 
a  royal  letter  addressed  to  Marmaduke,  Nevill,  and  "  the  rest  of 
the  commonalty  of  the  Bishopric,"  informed  them  that  the  Bishop 
was  disposed  to  come  to  terms  and  directed  them  to  appear  be- 
fore the  king  at  a  certain  date  for  the  final  adjustment  of  the 
matter.^  At  Eastertide,  1303,  Edward  was  in  Durham,  and 
before  him  and  his  council  the  contending  parties  reached  an 
agreement.  The  result  was  an  almost  complete  triumph  for 
the  party  of  Nevill  and  Marmaduke,  for  the  Bishop  incorporated 
in  his  charter,  with  insignificant  alterations,  nearly  all  the  articles 
proposed  in  their  petition. 

The  Bishop's  charter  is  of  so  much  constitutional  importance 
that  it  demands  careful  analysis.  This  document  consists  of 
twenty-two  sections ;  nine  of  these  look  toward  the  correction 
of  abuses  in  the  administration  of  justice,  four  toward  the 
suppression  of  unauthorized  exactions  from  the  freemen  of  the 
palatinate,  three  toward  the  restraint  of  the  abuse  of  feudal 
privilege  on  the  part  of  the  Bishop,  four  toward  the  confirma- 
tion of  sundry  special  privileges  enjoyed  by  the  people,  and  two 
relate  to  the  observation  of  the  articles  contained  in  the  charter 
and  to  the  mutual  relations  of  the  Bishop  and  his  subjects.* 

1  He  was  patriarch  of  Jerusalem  and  king  or  lord  of  the  Isle  of  Man ; 
fond  of  pomp  and  display,  and  not  always  scrupulous  in  getting  money,  if  the 
story  of  his  selling  Alnwick  Castle,  which  he  held  in  trust  for  the  natural 
son  of  William  de  Vescy,  may  be  believed.  See  Graystanes,  caps,  xviii, 
xxxi,  in  Scriptores  Tres,  64,  90 ;  Annales  Monastici  (Dunstaple),  iii.  298 ; 
Chronicles  of  Edward  I  and  Edward  II,  i.  176;  Calendar  of  Close  Rolls, 
1318-1323,  p.  16;  Foedera,  i.  pt.  ii.  1017  ;  The  Older  Historians  of  the  Isle  of 
Man  (Manx  Soc),  9,  129;  Hutchinson,  Durham,  i.  228-258;  Surtees,  Dur- 
ham, i.  pp.  xxxi-xxxv. 

2  Above,  §  5. 

^  This  document  is  printed  in  Surtees,  Durham,  i.  p.  cxxviii. 
*  Registrum,  iii.  61-67.     The  document  is  also  printed  in  Prynne,  His- 
torical Vindication,  v.  989-991. 


132  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

The  items  will  be  considered  in  the  order  named.  Under  the 
first  head  it  is  provided  that:  §  i.  No  freeman  shall  be  impris- 
oned except  by  inquest  or  sakeber,^  or  if  he  be  taken  in  the 
mainour.2  §  2.  No  freeman  shall  be  impleaded  in  the  court 
christian  except  for  matters  relating  to  testament  and  matri- 
mony ;  and  if  any  other  action  be  attempted,  he  shall  have  pro- 
hibition and  attachment  against  the  official.  §  6.  No  freeman 
shall  be  impleaded  in  a  halmote  or  other  villein  court,  and  even 
if  a  villeih  be  party  to  the  suit,  the  freeman  shall  have  a  writ 
enabling  him  to  plead  in  a  free  court.  §  7.  For  purposes  of 
arrest  and  imprisonment,  the  wapentake  of  Sadberg  is  to  be 
regarded  as  a  venue  distinct  from  the  rest  of  the  palatinate, 
except  in  cases  of  trespass  against  the  Bishop.  §  9.  The  Bishop 
shall  not  seize  any  lands  or  goods  in  the  palatinate  without 
a  writ,  except  in  the  case  of  the  death  of  a  tenant-in-chief 
§  10.  Without  due  recovery  in  court  no  officer  of  the  Bishop 
shall  levy  debt  on  any  freeman,  except  the  ascertained  debts  of 
the  Bishop.  §  15.  In  the  forest  courts  procedure  by  inquest  is 
to  be  allowed,  and  fines  are  to  be  amerced  by  the  suitors  of  the 
court  and  not  arbitrarily  by  the  bailiffs.  §  16.  Arbitrary  im- 
prisonment and  refusal  of  procedure  by  inquest  for  forest 
offences  are  not  to  be  tolerated.  §  21.  Except  for  distress, 
no  issues  shall  be  levied  on  any  freeman  until  the  party  has 
come  into  court. 

Under  the  second  head  it  is  provided  that :  §  8.  No  tolls  shall 
be  taken  on  sales  and  purchases  except  in  vills  merchant,  and 
all  transactions  in  the  open  country  (uppelaunde)  shall  be  free. 
§  II.  Except  in  time  of  war,  no  carriage  shall  be  levied  of  free- 
men without  reimbursement,  unless  such  carriage  is  involved  in 
their  tenure.  §  18.  Forest  officers  shall  make  no  unaccustomed 
exactions  of  freemen  in  the  way  of  corn-sheaves  and  the  like. 
§  20.  Dues  from  such  of  the  Bishop's  wastes  as  have  been  put 
to  farm  and  subsequently  abandoned  by  reason  of  poverty  shall 
not  be  levied  from  the  neighbors. 

1  i.  e.f  the  prosecutor  in  the  case  of  thieves  taken  in  the  act.  For  a  dis- 
cussion of  this  obscure  word,  see  Pollock  and  Maitland,  ii.  15. 

*  A  thief  having  the  stolen  goods  in  his  possession  was  said  to  be  taken 
with  the  mainour  {cum  manuopere).    See  Ibid.,  494,  SIT- 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY.  133 

Under  the  third  head  it  is  provided  that;  §  3.  The  Bishop 
shall  have  the  wardship  of  only  such  tenements  in  drengage^ 
as  are  held  of  himself  and  the  prior.  §  4.  Like  the  king,  the 
Bishop  may  have  the  wardship  of  all  the  tenements  of  his 
tenants-in-chief,  whether  such  tenements  be  held  of  himself  or 
of  a  mesne  lord.  §  5.  The  freemen  of  the  palatinate  may  make 
mills  on  any  of  their  lands  that  do  not  owe  suit  at  the  Bishop's 
mill,  and  they  may  open  and  work  mines  of  coal  and  iron  on 
their  own  land. 

Under  the  fourth  head  it  is  provided  that:  §  13.  All  the  men 
of  the  bishopric  may  have  free  entry  to  the  shrine  of  S.  Cuth- 
bert  except  in  time  of  war.  §  14.  Hunting  is  to  be  free  under 
certain  restrictions,  and  'in  districts  not  especially  privileged, 
such  as  parks  and  the  like.  §  17.  Persons  living  in  the  free 
chace  may,  in  respect  to  the  use  of  timber,  freedom  from  pan- 
nage, and  the  like,  have  all  privileges  that  by  reason  of  their 
tenure  belong  to  them.  §  19.  All  enclosures  made  in  the  free 
chace  by  Bishop  Bek  which  in  any  way  infringe  on  commonable 
rights  shall  be  removed  within  the  year. 

Under  the  last  head  it  is  provided  that:  §  12.  Only  the  four 
chief  coroners  may  be  mounted,  and  none  of  the  deputies  may 
go  on  horseback.  §  22.  The  Bishop  finally  undertakes  to  ob- 
serve and  support  all  of  these  articles,  and  for  the  honor  of 
the  king,  who  is  concerned  in  the  negotiation,  to  renounce 
any  rancor  or  ill-will  which  he  may  have  felt  toward  his 
people.  They,  in  turn,  give  up  any  claim  for  damages  or  the 
like  that  they  may  have  had  against  the  person  of  the  Bishop 
by  reason  of  the  abuses  mentioned  and  corrected  in  this 
agreement. 

The  points  enumerated  above  require  very  little  comment ; 
they  tell  plainly  enough  the  story  of  the  Bishop's  high-handed 
methods  of  government.  The  manner  of  obtaining  the  charter 
is  for  us  the  most  instructive  part  of  the  story.  It  is  clear  from 
the  articles  that  the  smaller  freemen  of  the  palatinate  were 
largely  concerned  in  the  struggle,  but  there  is  no  trace  of  any 

^  Drengage  is  a  peculiar  form  of  tenure,  bearing  a  resemblance  to  tenure 
by  knight-service,  but  liable  to  merchet  and  heriot.  See  Maitland,  North- 
umbrian Tenures,  in  English  Historical  Review,  v.  625-632. 


134  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

burghal  element ;  in  fact,  the  demand  for  free  traffic  outside  of 
privileged  towns  would  seem  to  exclude  the  possibility  that  the 
boroughs  were  in  any  way  concerned  in  the  movement.  The 
part  played  by  the  church  and  baronage  is  sufficiently  obvious  ; 
but  it  should  be  noticed  that  even  the  combination  of  these  three 
powerful  forces  was  not  strong  enough  to  coerce  the  Bishop, 
who  stood  out  successfully  against  his  people  until  he  was  sub- 
jected to  pressure  by  the  king. 

It  should  be  remembered,  on  the  other  hand,  that  Bek  was  an 
unusual  man,  commanding  enormous  wealth,  and  —  at  least  until 
the  struggle  was  well  under  way  —  a  large  measure  of  royal 
favor.  Even  when  forced  to  yield,  he  made  a  last  effort  to  avoid 
his  new  responsibilities  by  withholding  the  charter.  The  tem- 
poralities were  restored  on  July  8,  1303,  and  the  charter  was 
sealed  at  York  some  months  later  and  delivered  to  William  de 
Greenfeld,  archbishop  of  York  and  chancellor  of  the  kingdom.^ 
Whether  he  retained  it  out  of  carelessness  or  at  Bek's  request 
we  do  not  know.  At  any  rate,  the  next  year  the  commonalty 
of  the  bishopric  petitioned  the  king  in  parliament  that  he  should 
obtain  for  them  livery  of  a  certain  charter  granted  to  them  by 
their  Bishop  and  by  him  delivered  to  the  chancellor.^  To  this 
petition  a  favorable  answer  was  made,  and,  since  the  document 
is  entered  in  the  episcopal  register,  the  inference  is  that  the 
commonalty  received  it.  In  1353  the  men  of  the  bishopric 
obtained  from  Edward  III  an  inspeximus  and  confirmation  of 
their  charter.^  This  interesting  story  illustrates  well  the  desire, 
on  the  one  hand,  of  the  assembly,  commonalty,  or  folkmoot 
to  control  the  Bishop,  and  on  the  other  hand  their  inability 
to  do  so  in  the  teeth  of  his  opposition  without  the  help  of  the 
king. 

Before  this  subject  is  left,  three  more  pieces  of  evidence,  suffi- 
ciently interesting  to  receive  at  least  a  passing  notice,  must  be 
considered.  The  first  is  an  obscure  story  which  comes  from 
the  year  133 1.     John  de  Creping,  a  monk  of  Durham  who  had 

1  Prynne,  Historical  Vindication,  v.  995-996 ;  Foss,  Judges,  iii.  96. 
"^  Rot.  Pari.,  33  Edw.  I,  i.  167  a;  Memoranda  de  Parliamento  (ed.  Mait- 
land),  126. 

8  Rot.  Pat.  27  Edw.  Ill,  pt.ii.  m.  25. 


§  12]  FUNCTIONS  OF  THE  ASSEMBLY.  135 

studied  at  Oxford  and  subsequently  created  great  scandals  in 
the  convent,  obtained  leave  to  go  to  Rome.  This  permission 
was  immediately  withdrawn,  and  Creping  went  on  his  own  mo- 
tion. He  was  then  declared  apostate  and  was  excommunicated. 
Thereupon  he  wrote  to  the  commonalty  of  the  bishopric  re- 
questing that  it  would  not  think  evilly  of  him,  since  he  was 
laboring  for  the  good  of  the  church.  The  king  and  the  arch- 
bishop of  York  were  interested  in  the  affair,  and  when  the  monk 
eventually  returned  the  Bishop  concerned  himself  to  make  his 
reinstatement  in  the  convent  as  easy  as  possible.  The  story  is 
dark,  and  since  it  comes  through  a  monkish  writer  considerable 
allowances  must  be  made  in  favor  of  the  hero.  It  is  possible 
that  it  has  some  political  significance ;  certainly  the  fact  that 
so  many  important  people  were  concerned  in  it  points  in  that 
direction.  At  any  rate,  for  the  present  purpose  it  is  important 
to  notice  that  in  the  palatinate  at  this  time  there  was  a  body  or 
assembly  to  which  a  letter  might  be  addressed  and  whose  influ- 
ence it  was  desirable  to  enlist.  The  fact  that,  after  the  letter 
had  been  received,  the  Bishop  interested  himself  in  the  affair 
may  possibly  indicate  that  his  action  had  been  guided  by  the 
voice  of  the  assembly.^ 

The  next  case  comes  from  the  year  1349.  Bishop  Hatfield 
had  issued  a  kind  of  general  commission  to  his  justices  to  in- 
quire and  dispose  of  certain  transgressions,  oppressions,  and  the 
like,  according  to  a  list  of  articles  transmitted  to  them.  On  this 
the  commonalty  approached  the  Bishop  —  but  by  what  means 
we  do  not  learn  —  representing  to  him  that  it  was  contrary  to 
the  custom  of  the  franchise  for  the  justices  to  hold  a  session 
under  general  articles  except  at  the  time  of  an  eyre,  and  praying 
that  the  Bishop  would  not  persist  in  his  intention.  This  he 
agreed  to  do,  not  only  for  the  occasion  in  question  but  for  the 
whole  of  his  pontificate  as  well.^    The  commonalty  no  doubt 

1  Graystanes,  cap.  xlvi,  in  Scriptores  Tres,  113-117. 

2  Littera  pro  communitate  Episcopatus  Dunelmensis.  Thomas  par  la 
grace  de  Dieu  Evesque  de  Duresme  a  touz  noz  foialx  et  loialx  as  queux 
cestes  noz  lettres  vendront  Saluz  en  Dieu.  Come  nous  eussons  assigne  noz 
Justices  a  Duresme  denquere,  oier  et  terminer  sur  divers  articles  de  diverses 
trespas  et  oppressions,  come  en  lour  commission  feust  pleinement  contenuz  ; 
sur  quel   la  commune  des  gentz  de  notre  roiale  Fraunchise  de  Duresme 


136  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

paid  well  for  this  favor,  though  that  part  of  the  transaction  is 
not  recorded. 

Finally,  in  1378  the  people  of-  the  liberty  made  a  clamosa 
querela  to  the  Bishop,  representing  to  him  that  the  butchers, 
fishmongers,  inn-keepers,  and  vintners  were  asking  prices  higher 
than  those  allowed  by  the  recent  statute  (23  Edw.  III).  On 
this  the  Bishop  issued  a  special  commission  to  his  justices  to 
inquire  into  such  offences  and  to  put  an  end  to  them.^ 


§  13.    Origin  and  Development  of  the  Council. 

It  was  said  of  the  passage  quoted  at  the  beginning  of  this 
chapter  that  the  writer  confused  two  bodies,  namely,  the  pala- 
tine assembly  and  the  Bishop's  council.  The  second  of  these 
now  requires  our  attention.  From  the  reign  of  Edward  II  on- 
ward the  documents  permit  us  to  speak  definitely  of  the  compo- 
sition and  functions  of  the  Bishop's  council,  but  in  dealing  with 
the  centuries  that  lie  between  the  Norman  Conquest  and  the 
death  of  Edward  I  much  caution  is  necessary. 

We  begin  with  a  reexamination  of  some  of  the  circumstances 
of  an  event  which  has  already  been  noticed,  the  story  of  Bishop 
Walcher's  murder  in  1080.  It  seems  that  the  Bishop  so  highly 
esteemed  his  friend  Liulf  that  without  his  advice  he  was  un- 

approcherent  a  nous  monstrantz  que  [one  or  two  words  illegible]  ne  noz  pre- 
decessours  unques  en  nul  temps  navions  session  des  Justices  sur  generals . 
articles,  forsque  en  temps  de  Eyre,  empriant  a  nous  qen  notre  temps  tieles 
choses  ne  feussent  pas  comencez,  en  grevance  et  travail  du  pais,  encontre 
la  custume  de  notre  dite  Fraunchise  roiale.  Nous,  desirantz  la  bone  voil- 
lance,  amur,  et  eese  de  nos  dites  gentz,  avons  grauntes  et  comande  que  noz 
ditz  Justices  sur  la  dite  commission  nulle  administracion  ne  execucion  fer- 
ront  mes  de  tout  surcesseront.  Et  grantons  por  tout  notre  temps  que 
tieles  enquerres,  ne  autres  que  soient  encontre  la  custume  de  notre  roiale 
Fraunchise  susdite,  ne  ferrons  ne  soeffrons  estre  fait  en  tant  come  en  nous 
est,  et  autrement  que  nous  et  noz  predecessours,  du  temps  dont  y  nyad 
memorie,  navons  use  affaire,  saufe  tote  foitz  temps  de  Eyre  et  autres  en- 
querres acustumes.  En  tesmoignance  de  quon  chose  a  cestes  lettres  avons 
mys  notre  seal.  Done  a  notre  Chastel  Daukland  le  tierez  iour  de  Marcz, 
Ian  de  notre  Sacre  quatre.  Per  litteram  de  privato  sigillo.  (Rot.  i.  Hatfield, 
ann.  4,  m.  4  dorse,  curs.  30.) 

1  Rot.  ii.  Hatfield,  ann.  28,  m.  5,  curs.  31. 


§13]  DEVELOPMENT  OF  THE   COUNCIL.  137 

willing  to  transact  any  secular  business/  Of  the  occasion  of 
the  quarrel  betv/een  Liulf  and  Leobwine  it  is  said  that,  "  when 
Liulf  had  been  summoned  by  the  Bishop  to  the  council  and 
had  made  a  just  and  lawful  judgment,"  Leobwine  began  to 
taunt  Liulf .2  After  Liulf's  murder  the  Bishop  undertook  at  the 
gemot  at  Gateshead  to  clear  himself  by  the  ordeal ;  alarmed  no 
doubt  at  the  temper  of  the  assembly,  he  declined  to  plead  in  the 
open  air  and  withdrew  to  a  neighboring  church,  accompanied  by 
his  clerics,  the  more  honorable  of  his  knights,  and  all  those  who 
were  apt  to  give  counsel,  and  there  a  council  was  held.^  The 
picture  evoked  by  these  words  is  not  only  that  of  a  desperate 
man  hastily  collecting  his  friends  and  asking  their  advice  ;  there 
is  a  suggestion  of  something  more  formal  and  of  greater  author- 
ity, of  a  select  body  of  knights  and  clerics  whose  membership 
was  well  known  and  whose  advice  the  Bishop  was  accustomed 
to  seek.  The  existence  of  such  a  body  may  also  be  traced  in 
the  relation  of  the  Bishop  with  the  two  monks  of  Evesham, 
Aid  win  and  Turgot.  We  read  that  the  Bishop,  delighting  in 
their  wisdom,  frequently  summoned  them  to  his  colloquium  at 
Durham,  and  acted  on  the  advice  they  gave  there.*  It  is  evi- 
dent therefore  that  some  sort  of  council  existed. 

From  this  point  until  the  middle  of  the  thirteenth  century  the 
chroniclers  give  us  no  aid,  and  we  must  depend  on  the  names 
of  witnesses  in  such  episcopal  charters  as  are  available.  The 
series  begins  with  Ranulf  Flambard,  1099-1128,  for  there  are 

1  "Absque  illius  consilio  majores  secularium  negotiorum  causas  nullate- 
nus  agere  vellet  aut  disponeret : "  Florence  of  Worcester,  ii.  14.  Walcher 
obtained  the  earldom  of  Northumberland  after  Waltheof  had  been  deprived 
for  his  part  in  the  conspiracy  of  1075  (Symeon,  i.  113-116;  William  of 
Malmesbury,  Gesta  Pontificum,  271-273;  Stubbs,  i.  409).  It  might  there- 
fore be  objected  that  these  words  have  reference  to  the  temporal  govern- 
ment of  the  earldom  rather  than  to  that  of  the  bishopric.  This  view  is 
inadmissible,  however,  because  we  are  expressly  told  by  Symeon  that  the 
Bishop  intrusted  the  government  of  the  earldom  to  his  nephew  Gilbert 
(Symeon,  ii.  208-211). 

2  "  Cum  idem  vir  Liulfus  ab  episcopo  vocatus  ad  consilium  legalia  quae- 
que  et  recta  decerneret,"  etc. :  Florence  of  Worcester,  ii.  14. 

^  Ibid.,  14-15.     But  Symeon  (i.  116)  says  that  the  Bishop  was  alarmed 
by  the  crowd  and  so  took  refuge  in  the  church. 
*  Symeon,  i.  112. 


138  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

none  of  Walcher's  charters,  and  those  ascribed  to  Bishop  Wil- 
liam I  are  spurious.^  Five  of  Bishop  Flambard's  charters  have 
survived ;  they  are  undated  and  two  of  them  have  no  witnesses.^ 
Among  the  witnesses  in  the  other  three  are  the  names  of  Osbert, 
nephew  of  the  Bishop,  who  was  afterward  sheriff  of  Durham 
and  possibly  held  the  office  at  this  time,^  Robert  the  archdeacon, 
Roger  de  Conyers,  one  of  the  episcopal  barons,*  Peter  de  Hum- 
fraville  and  John  de  Amundaville,  two  names  which  at  a  later 
date  were  borne  by  great  baronial  families  in  the  north,^  and 
two  persons  described  as  chamberlains  {camerarii)^  with  several 
others  who  cannot  be  identified. 

Bishop  Geoffrey  (1133-1140)  made  a  grant  of  certain  lands  in 
the  bishopric,  the  boundaries  of  which  were  perambulated  by 
Osbert,  the  sheriff,  Geoffrey  de  Escolland,  William  de  Freibos, 
Odo  de  Brenba,  Roger  de  Putot,  Aechardus,  and  Dolfinus  his 
brother.  Nearly  all  these  names  reappear  among  the  witnesses, 
along  with  those  of  Robert  de  Amundaville,  Roger  de  Conyers, 
and  several  others  who  are  known  to  have  been  palatine  or  epis- 
copal barons.  There  are  also  here  and  in  other  charters  of  this 
Bishop  such  names  as  Dolfinus,  Engelarius,  Gamel  son  of  Ael- 
ferus,  Geoffrey  Train,  and  the  like,  which  are  clearly  not  noble. 
William,  a  chamberlain,  and  Osbert,  sheriff  and  nephew  of  the 
Bishop,  supply  the  official  element,  and  one  or  more  archdeacons 
the  clerical.^  In  Bishop  William  IPs  charters  the  clergy  predom- 
inate ;  Osbert  the  sheriff  is  the  only  officer  named,  but  the  baro- 
nial families  of  Bulmer,  Conyers,  Freibos,  and  Amundaville  are 
represented." 

Bishop  Pudsey's  charters  show  a  large  and  somewhat  shifting 
baronial  element  in  the  council,  though  certain  familiar  names 
constantly  reappear,  such  as  Hansard,  Hilton,  Conyers,  Punch- 

^  See  Canon  Greenwell's  preface  to  the  Feodarium. 

2  Scriptores  Tres,  App.  No.  xviii-xxi;  Surtees,  Durham,  i.  p.  cxxv;  Feo- 
darium, 98,  145. 

8  A  charter  of  Bishop  Geoffrey  is  witnessed  by  "Osbert  vicecomes," 
and  another  of  Henry  earl  of  Northumberland  {temp.  Henry  I)  is  addressed 
"  Willelmo  cancellario,  Osberto  vicecomiti,  et  omnibus  hominibus  de  Hali- 
weresfolc:"  Feodarium,  112,  152. 

*  See  above,  p.  65.  ^  Plac.  de  Quo  War.,  604. 

•  Feodarium,  112,  140,  205.  '  Ibid.,  Ixi-lxv,  131-132. 


§  13]  DEVELOPMENT  OF  THE  COUNCIL,  139 

ardon,  and  de  Leia.  Some  member  of  each  of  these  families 
seems  to  have  been  in  constant  attendance  on  the  Bishop.  The 
clergy  were  always  present,  sometimes  the  prior  or  archdeacon, 
sometimes  one  or  more  persons  described  as  clerici  or  capellani} 
The  household  and  administrative  officers  also  appear  more 
freely,  —  several  camerarii^  a  pincerna?  3.  dapifer,^  a  marescal- 
liis^  an  hostiarius^  several  vicecomites^  a  senescallus^  a  venator^ 
and  a  silvanus}^  There  is  also  a  body  of  persons  who,  to  judge 
from  their  names,  are  not  noble  and  who  should  probably  be 
reckoned  as  councillors  pure  and  simple,  especially  adapted  by 
their  learning  or  skill  to  aid  the  Bishop  in  the  various  depart- 
ments of  government ;  among  these  are  such  names  as  Simon, 
Ernaldus,  Robert  Scot,  Helias,  Wido  Tisun,  John  Inigna,  Robert 
Bacun,  and  Stephen  the  physician."  Among  the  permanent 
councillors  should  be  reckoned  Henry  Pudsey,  the  Bishop's  son, 
and  a  certain  Simon  the  chamberlain ;  these  two  names  appear 
with  great  regularity,  and  Simon  in  a  grant  of  land  which  he  ob- 
tained for  his  two  nephews  is  described  as  "dilectus  filius  et 
familiaris  "  of  the  Bishop.^^ 

Philip  of  Poitou,  the  next  Bishop,  has  left  a  much  smaller 
number  of  charters  than  his  predecessor,  Pudsey.  These  show 
no  change  in  the  composition  of  the  council,  except  in  the  fact 
that  the  more  humble  element  is  less  prominent."  The  charters 
of  the  successive  Bishops  up  to  1259,  when  Walter  de  Kirkham 
held  the  see,  show  nothing  of  importance."  Bishop  Kirkham's 
charter  of  1259  is  witnessed  by  John  de  Balliol,  Robert  de  Nevill, 

1  Feodarium,  Ixxxvi,  10,  100,  106,  108,  113,  134,  140-142,  177,  182,  198, 
206;  Boldon  Book,  App.  xlii-xlvi;  Scriptores  Tres,  App.  No.  xlv. 

2  Feodarium,  Ixxxvi,  108,  113,  134,  177,  182,  198;  Boldon  Book,  App. 
xlii-xlvi;  Scriptores  Tres,  App.  No.  xlv. 

2  Feodarium,  Ixxxvi.  ^  Ibid.,  106. 

5  Boldon  Book,  App.  xlii.  8  Feodarium,  177. 

'  Ibid.,  113,  134,  136,  140,  182,  198;  Boldon  Book,  App.  xliii-xliv. 

8  Feodarium,  141.  *  Ibid.,  106.  ^^  Ibid.,  141. 

11  Ibid.,  Ixxxvi,  100,  106,  134,  141. 
'^'^  Boldon  Book,  App.  xliv. 
"  Feodarium,  109,  150,  177-178;  Hutchinson,  Durham,!.  190  note. 

"  Hutchinson,  Durham,  i.  197  note;  Feodarium,  149,  186,  187,  197,  217; 
Scriptores  Tres,  App.  No.  Iviii ;  and  cf.  also  Matthew  Paris,  Chronica 
Majora,  vi.  340. 


I40  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

Marmeduke  Fitz  Geoffrey,  and  William  de  Fengeram,  knights, 
**  and  many  others."  ^  The  next  year  Kirkham  issued  another 
charter,  of  which  the  test  clause  is  particularly  interesting.^  It 
opens  with  a  list  of  four  magistri,  one  of  whom,  Roger  de  Sey- 
ton,  was  probably  a  palatine  justice;  at  any  rate  he  certainly 
held  the  Bishop's  commission  later.^  Then  follow  nine  domini 
militeSy  including  the  familiar  names  of  Nevill,  Hansard,  and  de 
Leia  ;  then  come  the  steward,  a  chaplain  and  a  clerk,  and  a 
miscellaneous  group  of  eight  persons  whose  rank  is  not  speci- 
fied. This  list  clearly  marks  a  step  in  organization;  and  the 
presence  of  a  justice,  or  at  least  of  a  man  learned  in  the  law,  is 
also  significant.  The  example  thus  set  by  Bishop  Kirkham  is 
followed  by  his  successors,  Robert  Stichill  and  Robert  de  Lisle.* 
The  striking  feature  in  Bishop  Bek's  council  is  the  increase  of 
the  legal  element,  combined  very  often  with  the  clerical.^  Two 
important  members  were  Guiscard  de  Charron  and  Peter  de 
Thoresby.  The  former  was  a  person  of  great  importance  in  the 
palatinate,  and  probably  a  favorite  of  the  Bishop ;  at  any  rate 
he  held  many  offices,  but  none  more  often  than  that  of  justice.^ 
He  and  Thoresby  were  both  justices  in  1295.''  William  de  S. 
Botulph  and  Stephen  de  Mauley,  each  in  turn  combining  the 
offices  of  steward  and  archdeacon  of  Durham,  also  witness 
Bishop  Bek's  charters.^  The  importance  of  the  legal  element 
in  the  council,  as  well  as  the  general  composition  of  the  body, 
appears  in  the  story  of  the  beginning  of  the  quarrel  between  the 
Bishop  and  the  prior,  as  told  by  Walter  of  Hemingburgh.  The 
Bishop  undertook  to  make  a  visitation  of  the  convent  in  1300. 
He  appeared  accordingly,  attended  by  numerous  knights  and 
clergy.  The  prior  objected  that  it  would  be  inconvenient  to  ex- 
pose the  secrets  of  the  convent  to  so  many  persons,  but  the  Bishop 

1  Feodarium,  182.  2  jbid.^  184. 

8  See  below,  §  18  ;  cf.  Hutchinson,  Durham,  i.  219. 

^  Feodarium,  183,  187;  Finchale  Chartulary,  no. 

^  Registrum,  ii.  1188,  1209,  iii.  236,  iv.  loo-ioi  ;  Feodarium,  183. 

«  See  below,  §  18. 

'  Registrum,  iii.  69.  Just  before  Bek's  accession,  in  1283,  these  two  had 
saved  the  life  of  the  archbishop  of  York,  who  rashly  undertook  to  visit  the 
church  of  Durham.     See  Graystanes,  cap.  xix,  in  Scriptores  Tres,  6^. 

^  See  above,  note  5. 


§  13]  DEVELOPMENT  OF  THE   COUNCIL.  141 

answered  him  sharply,  "  Sit  down,  prior,  and  understand  clearly 
that  we  intend  that  all  these  who  are  of  our  council  shall  accom- 
pany us."  Among  the  persons  thus  referred  to  were  John  de 
Lasci  and  Reginald  de  Brandun,  famous  lawyers,  whom  the 
Bishop  had  brought  with  him  in  order  to  vindicate  his  canonical 
right  of  visitation.  The  monks,  alarmed  by  these  preparations, 
gave  notice  of  ^n  appeal  to  the  archbishop's  court  at  York 
with  a  supplementary  appeal  to  Rome,  and,  having  thereby 
suspended  proceedings,  trooped  out  of  the  chapter-house,  leav- 
ing the  Bishop  and  his  council  alone.^  In  the  account  roll 
of  the  palatinate  for  the  year  1307  there  is  an  entry  of  the  ex- 
penses of  lord  Stephen  (probably  Stephen  de  Mauley,  steward 
and  archdeacon)  and  other  members  of  the  council  and  pleaders 
at  several  of  the  law  terms.^  Bek  had  an  unusually  turbulent 
pontificate,  and  his  constant  quarrels  with  the  prior  and  the 
king  involved  him  in  a  great  deal  of  litigation,  a  fact  which 
partly  explains,  no  doubt,  the  considerable  increase  of  the  legal 
element  in  his  council. 

After  the  accession  of  Bishop  Kellaw  the  documents  attain- 
able become  more  plentiful  and  far  fuller,  so  that  it  is  possible 
to  distinguish  an  important  change  in  the  organization  of  the 
council.  Before  entering  on  a  consideration  of  this  subject, 
however,  it  will  be  well  to  form  some  clearer  notion  of  the  body 
we  have  been  studying.  Whereunto  shall  the  Bishop's  council 
be  likened?  The  first  impulse  is  to  compare  it  to  the  concilium 
regis  of  the  kings  of  England :  other  palatine  institutions  fol- 
lowed more  or  less  closely  the  pattern  set  for  them  in  the  king- 
dom ;  why  not  this  one  t  If  for  this  analogy  we  accept  the  view 
of  Stubbs  and  Freeman,  we  shall  have  to  recognize  in  the  king's 
council  a  kind  of  standing-committee  of  the  great  or  national 

^  "  *  Sede,  prior,  et  pro  certo  intellige  quod  omnes  istos  qui  de  consilio 
nostro  sunt,  nobiscum  habere  volumus  in  praesenti.'  Adduxerat  enim  secum 
magistrum  Johannem  de  Lasci,  et  magistrum  Reginaldum  de  Brandun  famo- 
sos  advocates  et  quosdam  alios  nominatos,  volens  et  disponens  mirabilia 
facere ;  propter  quod  monachi  .  .  .  statim  appellarunt  ad  curiam  Eborum 
.  .  .  et  in  supplementum  justitiae  curiam  Romanam ;  et  sic  appellatione 
muniti  recesserunt  omnes  ;  remansitque  solus  episcopus  cum  consilio  suo :  " 
Walter  of  Hemingburgh,  ii.  214-215. 

2  Boldon  Book,  App.  xxxv. 


142  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

council  (^commune  concilium) y  itself  the  successor,  under  the 
Norman  dispensation,  of  the  Anglo-Saxon  witenagemot.  Ac- 
cording to  this  view,  the  great  officers  of  the  household,  who  at 
first  formed  the  body  of  royal  advisers,  become  hereditary  and 
give  way  to  a  new  series  of  dignitaries  whose  functions  are 
purely  ministerial.  Thus  in  the  twelfth  century  the  court  and 
council  of  the  king  are  the  same,  and  the  curia  re^is  is  ready  to  be- 
gin that  amazing  development  which  will  produce  an  articulate 
financial  and  judicial  system  for  the  kingdom,  leaving  about  the 
crown  the  narrow  council,  which  in  the  succeeding  century  will 
take  up  an  important  growth  of  its  own.^ 

Now  in  the  palatinate  conditions  do  not  tally  with  those  of  the 
kingdom  in  this  point.  In  the  first  place,  there  is  no  evidence 
that  the  household  of  the  Bishop  became  hereditary  and  was  re- 
placed by  a  new  series  of  officers.  On  the  contrary  we  have 
seen  that  this  was  not  the  case.^  In  the  second  place,  the  coun- 
cil of  the  king,  by  the  theory  which  has  been  stated,  would  have 
a  distinctly  permanent  character;  that  is  to  say,  almost  any 
ordinary  session  would  comprise  the  immediate  advisers  of  the 
crown,  while  persons  who  theoretically  had  a  right  to  be  present 
by  reason  of  tenure  or  dignity  would  not  be  there  unless  for 
some  special  reason.  But  we  find  that  the  character  of  the 
Bishop's  council  is  shifting ;  it  will  include  now  this,  now  that, 
officer  or  member  of  the  clergy,  now  these  barons,  now  those ; 
although  in  general  the  composition  is  the  same,  the  individuals 
continually  differ.  Finally,  there  is  no  trace  in  the  Bishop's 
council  of  the  development  which  took  place  in  the  curia  regis 
in  the  twelfth  and  thirteenth  centuries,  a  circumstance  largely 
due  to  the  reduplication  of  offices  in  individuals,  which  has  been 
noticed  elsewhere.^  The  functions  of  the  council  multiplied,  but 
the  increased  business  involved  by  new  offices  was  not  too  great 
to  be  despatched  by  the  same  body  in  various  aspects,  and  hence 
the  pressure  which  might  have  precipitated  these  aspects  of  one 
body  into  separate  entities  was  lacking.  Upon  this  theory  of  the 
concilium  regis  therefore  the  proposed  analogy  will  not  stand. 

1  Stubbs,  i.  389-406,  ii.  278-288 ;  Freeman,  Norman  Conquest,  iii.  289, 
V.  422  £f. 

a  Above,  §  9.  *  Above,  pp.  97-99- 


§  13]  DEVELOPMENT  OF  THE   COUNCIL,  143 

There  is,  however,  another  view,  that  of  Gneist,  according 
to  which  in  the  Norman  period  the  commune  concilium,  of  the 
kingdom  is  to  be  connected  with  the  baronial  court  of  the  Nor- 
man duchy  and  quite  dissociated  from  the  Anglo-Saxon  witen- 
agemot.^  This  theory  applies  only  to  the  Norman  period  and 
will  not  affect  what  has  been  said  of  the  twelfth-century  devel- 
opment. So  far  as  it  goes,  an  analogy  may  probably  be  estab- 
lished here ;  but  if  this  is  possible,  the  analogy  will  extend  to 
the  thirteenth  century.  It  will  be  wiser,  then,  to  reject  alto- 
gether the  attempt  to  compare  the  Bishop's  council  to  anything 
in  the  kingdom,  and  to  seek  rather  its  points  of  resemblance 
to  the  curia  or  council  of  a  great  feudal  lord  in  France.  Let 
us  see  what  were  the  chief  characteristics  and  functions  of 
this  body. 

First,  it  was  essentially  the  entourage  of  the  lord,  and  on  this 
account  presented  no  fixed  or  permanent  aspect,  so  that  from 
day  to  day  the  number  and  degree  of  the  persons  composing  it 
might  vary  considerably.  But  the  members  may  be  grouped 
into  two  classes.  The  first  class  was  composed  of  members  of 
the  higher  clergy  and  seignorial  baronage,  who  were  compelled 
by  their  feudal  obligations  to  form  part  of  their  lord's  court.  In 
theory  perhaps  all  of  these  must  or  might  be  present,  but  in 
practice  only  those  appeared  who  were  attracted  by  their  own 
interest,  their  regard  for  their  lord,  or  by  some  accident  that 
made  attendance  easy.  The  frequency  of  their  appearance  was 
in  direct  relation  to  their  dependence  on  their  lord  or  their  good 
disposition  toward  him.  The  second  class  embraced  the  officers 
of  the  fief.  These  persons  were  generally  of  modest  station, 
knights  or  clerics,  and,  after  the  twelfth  century,  even  burghers. 
They  had  special  duties,  could  be  removed  at  pleasure,  and  were 
eventually  paid  for  their  services.  They  were  very  frequently 
persons  trained  in  the  law.  This  element  was  permanent,  de- 
pendent on  the  lord  and  flexible  to  his  will,  and  hence  in  the 
twelfth  century  it  increased  in  importance  with  the  growth  of 
the  ducal  or  comital  power.  Finally,  certain  members  of  the 
council  belonged  to  both  classes  at  once,  such,  for  example, 
as  the  great  officers  of  the  fief,  who  would  often  be  barons  as 
1  Gneist,  Verwaltungsrecht,  i.  20  £f. 


144  ^^^  ASSEMBLY  AND   THE  COUNCIL  [Ch.  IV. 

well,  so  that  it  is  often  impossible  to  tell  in  which  capacity  they 
appeared.^ 

Clearly  the  analogy  between  this  body  and  the  Bishop's  coun- 
cil is  complete  at  almost  every  point.  The  change  by  which  the 
humbler  and  more  permanent  element  secured  predominance  in 
the  council  comes  indeed  a  century  later  in  England  than  in 
France ;  but,  as  has  been  frequently  noticed,  the  palatinate  did 
not  obtain  a  full  measure  of  feudal  independence  until  the  close 
of  'the  thirteenth  century,  and  it  was  about  the  middle  of  that 
century  when  the  less  distinguished  members  of  the  council,  and 
particularly  those  trained  in  the  law,  began  to  play  a  prominent 
part  in  that  body.  We  conclude,  then,  that  the  Bishop's  council 
was  essentially  a  feudal  body  in  its  origin  and  theoretic  composi- 
tion. In  practice,  however,  and  under  pressure  of  certain  execu- 
tive and  administrative  necessities,  occasioned  in  the  palatinate 
as  in  France  by  the  absence  of  any  direct  relation  between 
the  people  of  the  district  and  the  crown,  it  became  defeudalized 
and  assumed  many  of  the  functions  and  characteristics  of  a 
rudimentary  ministry  of  state.  When  we  have  completed  the 
survey  of  the  composition  of  the  Bishop's  council  and  have  to 
consider  its  functions,  we  shall  find  that  our  analogy  still 
holds  good  .2 

It  is  probable  that  the  practice  of  paying  a  salary  to  members 
of  the  council  began  at  least  as  early  as  the  pontificate  of  Bishop 
Bek,  but  the  first  proof  of  such  an  arrangement  appears  in  a 
document  executed  in  October,  131 1.  This  is  an  indenture  be- 
tween Bishop  Kellaw  and  Sir  Richard  Marmaduke,  by  the  terms 
of  which  the  latter  agrees  to  become  a  member  of  the  Bishop's 

1  Luchaire,  Manuel,  257-259. 

2  Hutchinson  supposed  that  the  Bishop's  council  was  composed  of  barons 
who  by  reason  of  their  tenure  were  obliged  to  act  as  the  Bishop's  advisers, 
and  whom  he  was  equally  obliged  to  accept  in  that  capacity.  He  regards 
this  body  as  at  once  a  privy  council  and  a  miniature  house  of  lords,  and 
compares  it  to  the  assembly  of  the  island  of  Jersey.  Reason  for  rejecting 
the  theory  has  been  shown  in  the  text  above,  and  the  comparison  will  not 
hold.  An  example  of  the  sort  of  body  which  Hutchinson  had  in  mind  may 
be  seen  in  the  cour  majour  of  Bdarn.  See  Hutchinson,  Durham,  i.  316; 
Falle,  Caesarea,  222-223,  233-237;  Plees,  Account  of  Jersey,  221  £E.;  Lu- 
chaire, Manuel,  257. 


§  13]  DEVELOPMENT  OF   THE    COUNCIL.  145 

council,  and  to  aid  him  in  governing  the  palatinate  for  one 
year  next  following,  at  a  salary  of  twenty  marks,  payable  at  the 
Bishop's  exchequer  in  two  instalments.^  This  engagement  is 
renewed  in  the  following  year,  and  a  similar  one  is  made  be- 
tween the  Bishop  and  Lord  Robert  Nevill.^  At  the  same  time 
the  Bishop  added  to  his  list  of  retainers  a  Sir  Ralph  Fitz  William, 
who  took  the  Bishop's  livery  and  agreed  to  form  part  of  his 
"  sute  de  chivallers  "  and  to  hold  himself  at  his  disposal  for  one 
year,  receiving  a  salary  of  one  hundred  marks  in  three  instal- 
ments.^ In  the  course  of  the  year  we  find  Fitz  William  witness- 
ing the  Bishop's  charters.*  This  looks  as  though  the  baronial 
element  in  the  council  were  being  reduced  to  a  very  small  num- 
ber, and  made  more  manageable  by  being  brought  into  an  un- 
feudal  relation  with  the  Bishop. 

An  examination  of  a  number  of  charters  issued  by  Bishop 
Kellaw  in  the  second  year  of  his  pontificate  shows  the  average 
number  of  witnesses  to  have  been  between  six  and  seven,  with 
a  maximum  of  eleven  and  a  minimum  of  three.  In  the  group  of 
witnesses  to  each  charter  the  average  number  of  barons  not 
holding  office  is  between  three  and  four,  but  many  of  these  were 
no  doubt  either  the  salaried  councillors  or  the  retainers  of  the 
Bishop,  like  Marmaduke,  Nevill,  and  Fitz  William,  all  of  whose 
names  frequently  recur.^  This  supposition  is  rendered  more 
probable  by  the  fact  that  Kellaw's  policy  was  to  increase  his 
retinue  by  conferring  his  livery  on  large  numbers  of  the  feudal 
tenants  of  the  bishopric.^  The  figures  given  have  only  an 
approximate  value,  for  there  were  always  persons  present  who 
did  not  sign  the  charter. 

An  important  meeting  of  Bishop  Bury's  council  in  1345  con- 
sisted of  thirteen  persons,  comprising  the  steward,  the  chancel- 

1  Registrum,  i.  9.  2  ibid.,  ii.  1169,  ii7o* 

8  Ibid.,  1 181.  -*  Ibid.,  1189,  1196. 

*  Ibid.,  1167,  1169,  1171-1172,  1173,  1177-1178,  1179-1180,  1189,  1190, 
1 1 94-1 195,  1 197,  1202. 

•  Graystanes,  cap.  xxxv,  in  Scriptores  Tres,  94.  Bishop  Hatfield  con- 
tinued this  policy,  as  is  learned  from  a  licence  issued  in  1377  to  Sir  John 
Nevill  to  fortify  Raby  Castle.  In  this  document  it  is  said  of  Nevill,  "  qui  de 
long  temps  adeste  de  nostre  consaile  et  nous  servant : "  Rot.  ii.  Hatfield,  ann. 
33,  m.  10  dorse,  curs.  31. 

10 


146  THE  ASSEMBLY  AND   THE   COUNCIL.        [Ch.  IV. 

lor,  five  justices,  the  sheriff  of  Durham,  one  of  the  coroners,  one 
cleric,  and  two  tenants-in-chief  of  the  Bishop.  This  session  was 
occupied  with  the  regulation  of  judicial  affairs,  and  may  prob- 
ably be  taken  as  typical  of  the  composition  of  the  council  when 
assembled  for  administrative  purposes.^  In  1386  Bishop  Ford- 
ham's  receiver-general  paid  the  fees  of  seven  persons  "  retenti 
de  concilio  episcopi,"  all  of  whom  appear  to  have  belonged  to 
noble  or  at  least  to  knightly  families.^ 

In  the  course  of  the  fourteenth  century  the  influence  of  the 
clergy  and  jurists  in  the  Bishop's  council  continued  to  increase. 
In  13 1 2  Bishop  Kellaw  writes  that  he  cannot  carry  out  an  en- 
gagement until  he  has  consulted  with  the  peritiores  of  his  coun- 
cil ;  ^  and  any  doubt  as  to  the  branch  of  learning  in  which  these 
persons  were  skilled  is  removed  when  it  is  found  that  among  the 
Bishop's  advisers  in  that  year  were  two  professors  of  civil  law.* 
One  of  these,  a  certain  Richard  de  Eriom,  seems  to  have  acquired 
entire  predominance  in  the  council  of  Kellaw's  successor,  Louis 
de  Beaumont.  He  was  in  priest's  orders  and  had  been  Bishop 
Kellaw's  official,  besides  standing  in  very  intimate  relations  to 
the  convent.^  His  name  will  recur  again.  In  the  course  of 
the  fourteenth  century,  then,  the  Bishop's  council  becomes 
smaller  and  more  manageable,  the  accidental  feudal  element 
is  excluded  by  a  system  of  salaries,  and  greater  prominence 
is  accorded   to   clerics  and   persons  skilled   in  the   law,   while 

^  Registrum,  iv.  349.  The  composition  of  any  given  session  of  the 
council  no  doubt  varied  in  direct  proportion  to  the  purpose  for  which  it  was 
gathered.  Thus  a  charter  issued  by  Bishop  Kellaw  in  131 2,  conveying  a 
grant  of  wardship,  is  tested  by  three  persons,  all  of  whom  are  tenants-in-chief. 
See  Ibid.,  ii.  1171-1172. 

2  This  statement  comes  from  an  extract  from  the  receiver-general's  account 
for  the  fourth  year  of  Bishop  Fordham,  printed  by  Hutchinson,  Durham,  i. 
316.  Hutchinson  copied  this  from  Randall's  MSS.,  but  the  original  docu- 
ment seems  to  have  disappeared,  although  it  may  possibly  be  found  in  a  col- 
lection of  Durham  ministers*  accounts  (a.  d.  i  341-1484)  belonging  to  the 
Ecclesiastical  Commissioners,  and  by  them  deposited  in  the  Record  Office. 
These  documents,  however,  are  in  such  bad  condition  as  to  be  useless  and 
therefore  can  not  be  examined ;  they  are  numbered  Ecclesiastical  Commis- 
sioners, ministers'  accounts,  190252. 

*  Registrum,  i.  193.  •*  Ibid.,  ii.  784,  808,  1167,  1169. 

s  Graystanes,  cap.  xl,  in  Scriptores  Tres,  103-104;  Registrum,  ii.  1207. 


§  13]  DEVELOPMENT  OF  THE   COUNCIL.  147 

the  officers  of  the  palatinate  continue  ex  officio  to  be  members 
of  the  council.^ 

In  the  fifteenth  century  there  is  very  little  change  to  be  noted 
in  the  composition  of  this  body.  The  practice  of  retaining  sala- 
ried members  appears  to  have  continued  and  even  increased. 
Thus  in  1447  Bishop  Nevill  granted  to  William  Norton,  "  con- 
siliarius  noster,"  an  annual  pension  of  ten  marks  as  a  reward  for 
his  faithful  services  in  counselling  the  Bishop.^  In  1461  the 
receiver-general  paid  forty  shillings  as  the  fee  of  Richard  Pygot, 
"  unius  periti  domini  de  consrlio  suo."^  The  practice  of  in- 
creasing the  Bishop's  retinue  by  conferring  his  livery  grew  rap- 
idly in  this  century,  especially  in  the  pontificate  of  Bishop  Nevill. 
It  is  possible  that  persons  so  retained  received  a  sort  of  honorary 
membership  in  the  Bishop's  council,  which  would  oblige  them 
to  share  with  him  the  responsibility  of  his  acts,  although  their 
attendance  at  meetings  of  the  council  would  be  of  secondary 
importance,  depending  on  their  accidental  presence  or  the 
Bishop's  pleasure.  Something  like  this  arrangement  is  sug- 
gested in  the  agreement  made  by  Bishop  Langley  with  Sir 
Robert  Ogle,  to  whom  was  granted  for  a  term  of  years  practi- 
cally all  the  offices  of  the  little  district  of  Norhamshire  on  the 
Scottish  border.  Ogle  engaged  to  be  of  the  Bishop's  council 
and  to  serve  him  whenever  need  might  arise ;  *  but  he  probably 

1  Besides  the  case  described  above,  p.  145,  we  know  that  Nicholas  Gate- 
gang  was  at  once  chancellor  of  Durham  and  a  member  of  the  Bishop's  coun- 
cil. See  the  Durham  sheriff's  account,  A.  d.  1336,  Auditor  i,  No.  i,  and 
Cursitor  211,  No.  9.  The  former  record  notes  a  payment  made  by  the 
authority  of  N.  Gategang  and  other  members  of  the  council ;  the  latter  is  a 
precept  bearing  the  same  date,  given  by  the  hand  of  N.  Gategang,  chan- 
cellor. 

2  Rot.  ii.  Nevill,  ann.  9,  m.  13,  curs.  43. 

^  Receiver-general's  account,  A.  d.  1461,  Ecclesiastical  Commissioners, 
ministers'  accounts,  1898 16. 

*  "  Et  le  dit  Monsieur  Robert  .  .  .  voet  et  graunte  .  .  .  destre  de  coun- 
saille  de  dit  Evesque  et  de  [ses]  successours  Evesques,^et  eux  loiallment  coun- 
sailler,  et  lour  counsaille  celer  et  lours  honours  et  profits  garder  et  faire 
garder  en  tout  son  loial  pouvoir,  et  de  faire  service  au  dit  Evesque  et  ses 
successours  Evesques  a  toutz  les  foitz  qils  averount  besoigne  de  luy : "  Rot. 
DD.  Langley,  ann.  31,  m.  16,  curs.  37.  See  also  an  indenture  between  Bishop 
Nevill  and  Sir  William  Eure,  by  which  the  latter,  in  1438,  bound  himself  to 


148  THE  ASSEMBLY  AND   THE   COUNCIL,       [Ch.  IV. 

passed  most  of  his  time  at  Norham  Castle,  and  could  not  have 
attended  the  Bishop's  council  unless  the  meetings  were  held 
there.  The  fifteenth-century  notion,  that  the  Bishop's  council 
consisted  of  men  chosen  rather  for  their  qualifications  than  for 
their  station  or  degree,  appears  in  a  contemporary  version  of  the 
story  of  the  wanderings  of  S.  Cuthbert's  body.  The  words  in 
the  chronicle  are  these :  **  Tunc  quidem  habito  inter  se  consilio, 
episcopus  cum  congregatione  cunctique  in  terra  meliores  vene- 
rabile  patris  corpus  secum  asportaverunt."  ^  They  are  rendered 
as  follows : — 

"Ye  bischop  and  his  colage  wyse 
Ye  best  of  his  diocyse 
Ye  counsaild  all'  to  gydyr."^ 

In  the  sixteenth  century  the  actual  working  body  seems  to 
have  become  very  small.  At  a  meeting  in  1524  there  were 
present  the  chancellor,  the  sheriff,  a  clerical  person  described  as 
"  supervisor,'*  John  Bentley  "  councillor,"  and  Sir  William  Eure, 
knight.  2  At  a  meeting  in  1528  six  persons  attended,  namely, 
the  chancellor,  the  sheriff,  the  steward,  the  surveyor,  Robert 
Bowes,  esquire,  and  John  Bentley  councillor.*  Persons  ad- 
mitted to  the  council  took  an  oath  faithfully  to  perform  their 
engagements  toward  the  Bishop  and  other  members  of  the 
council.^  It  is  even  possible  that  the  council  had  some  voice  in 
the  choice  of  a  new  member,  for  on  one  occasion  the  Bishop 
appointed  a  sheriff  —  who  ex  officio  would  be  of  the  council  — 
"  de  avisamento  consilii  nostri."  ^  In  the  fifteenth  century  this 
body  was  called  the  "  concilium  intimum."  ^ 

the  Bishop  as  his  retainer  "  a  ly  f  ayre  servicez  ou  counceller : "  Rot.  v. 
Nevill,  ann.  17  Hen.  VI,  m.  21,  curs.  46;  also  printed  in  Surtees,  Durham, 
i.  p.  cxxxiii. 

^  Symeon,  i.  246. 

2  Metrical  Life  of  S.  Cuthbert  (Surtees  Soc),  lines  5 157-5159. 

8  Rot.  ii.  Wolsey,  ann.  4,  m.  3  dorse,  curs.  73.  The  original  order  is 
tacked  to  the  roll ;  it  is  written  on  paper  and  is  signed  by  three  members 
only.  For  a  similar  case  see  Ibid.,  ann.  5,  m.  5  dorse ;  but  four  members 
were  present  on  this  occasion. 

*  Rot.  ii.  Wolsey,  ann.  20  Hen.  VIII,  m.  2  dorse,  curs.  T^. 

^  Registrum,  i.  10.  *  Ibid.,  iv.  345. 

^  Rot.  iv.  Nevill,  ann.  18,  m.  2,  curs.  45. 


§  14]  FUNCTIONS  OF  THE   COUNCIL.  149 

§  14.    Functions  of  the  Council. 

We  pass  now  to  a  consideration  of  the  functions  of  the  council. 
These  may  be  grouped  into  three  classes,  comprising  the  general 
administration  of  the  palatinate,  fiscal  arrangements,  and  the 
advice  and  control  of  the  Bishop.  The  council  was  also  from  an 
early  time  very  active  in  judicial  matters,  and  along  this  line 
it  had  a  considerable  development,  producing  later  a  chancery 
with  equitable  and  common-law  jurisdiction,  a  court  of  last 
resort  (the  Bishop  in  council),  and  eventually  a  court  of  admi- 
ralty. This  side  of  the  matter,  however,  has  been  fully  treated 
in  another  chapter  and  need  not  be  noticed  here.^ 

The  theory  of  the  council's  part  in  administration  is  well  set 
forth  in  the  oath  taken  by  Sir  Richard  Marmaduke  on  becoming 
a  councillor  in  13 11.  He  engaged  "well  and  loyally  to  counsel 
and  aid  the  said  Bishop  in  all  things  touching  himself  and  his 
church  of  Durham,  well  and  loyally  to  aid,  maintain,  guard,  and 
govern  the  peace  within  the  said  franchise  of  Durham  between 
the  waters  of  Tyne  and  Tees,  and  to  aid  in  restraining  and 
bringing  to  justice,  according  to  the  law  of  the  land,  evil-doers 
within  the  said  franchise,  as  often  as  he  should  be  required  or 
commanded  to  do  so."^ 

A  few  specific  instances  of  the  administrative  acts  of  the  coun- 
cil may  now  be  considered.  In  11 83  the  survey  of  the  palatinate 
known  as  Boldon  Book  was  undertaken  by  order  of  the  Bishop 
and  his  council.^  In  the  middle  of  the  next  century  the  whole 
intricate  business  of  the  law-suit  between  the  Bishop  of  Durham 
and  the  abbot  of  S.  Albans,  with  respect  to  the  advowson  of  the 
church  of  Overconscliffe,  was  managed  by  the  comicil;  this  case 

^  Below,  §§  20,  24,  and  App.  ii. 

2  Registrum,  i.  9.  The  words  "  lui  et  sa  eglise  de  Duresme  "  must  not  be 
supposed  to  imply  any  ecclesiastical  functions  of  the  council ;  the  Bishop 
of  Durham  was  said  to  hold  his  liberties  "  non  jure  proprio,  sed  jure  ecclesiae 
suae  Sancti  Cuthberti  Dunelm."  See  The  Practice  of  the  Court  of  Chancery 
of  Durham,  1-7. 

^  "Anno  Incarnationis  Dominicae  [sic]  millesimo  centesimo  octogesimo 
tertio,  ad  festum  Sancti  Cuthberti  in  Quadragesima,  fecit  Dominus  Hugo 
Dunolmensis  Episcopus  in  presentia  sua  et  suorum  describi  omnes  redditus 
totius  Episcopatus  sui  sicut  tunc  erant :  "  Boldon  Book,  p.  i. 


I50  THE  ASSEMBLY  AND    THE   COUNCIL.         [Ch.  IV. 

involved  a  great  deal  of  difficulty  and  diplomacy,  for  much  de- 
pended on  securing  the  king's  favor  and  special  writs  from  him.^ 
We  have  already  seen  what  part  the  council  bore  in  Bishop  Bek's 
attempt  to  subdue  the  prior  and  convent.^  In  13 13  it  was  again 
helping  the  Bishop  to  order  the  affairs  of  the  convent  with  the 
aid  of  a  delegation  of  monks.^  In  1335  the  council  directed  the 
sheriff  to  pay  a  sum  of  money  to  Peter  de  Greet,  the  king's  mar- 
shal, in  order  that  he  might  not  do  anything  to  infringe  on  the 
liberty  of  the  bishopric*  In  1345,  in  pursuance  of  an  agreement 
previously  reached  between  the  king  and  the  Bishop,  the  council- 
lors made  an  ordinance  facilitating  the  arrest  in  the  liberty  of  per- 
sons who  had  committed  crimes  in  other  counties.^  In  1364  they 
asserted  the  Bishop's  right  of  wreck  throughout  his  province, 
by  forcing  John  de  Carrowe  to  surrender  a  whale  which  a  storm 
had  driven  ashore  in  his  manor  of  Seaton  Carrowe.  John  set  up 
the  defence  that  he  did  not  know  that  a  whale  was  a  royal  fish ; 
and,  as  the  creature  was  cut  up  and  distributed  among  his  friends, 
he  was  glad  to  escape  with  a  fine  of  one  hundred  marks  and  a 
formal  acknowledgment  of  the  Bishop's  right  in  all  such  cases.^ 
Between  1370  and  1379  the  council  was  occupied  with  the 
management  of  the  college  which  Bishop  Hatfield  had  founded 
for  the  monks  at  OxfordJ  In  1410  the  question  arose  of 
making  certain  payments  to  the  prior  and  convent  under  the 

1  Matthew  Paris,  Chronica  Majora,  vi.  326-332,  340,  346,  347,  376-382. 

2  Above,  p.  140. 

8  The  prior  and  convent  appointed  certain  monks  to  represent  them  "in 
omnibus  negotiis  et  ordinationibus  monasterium  Dunolmense  et  ipsius  pri- 
oratum  tangentibus,  de  quibus  hac  instant!  die  Mercurii,  proxima  post  festum 
Sanctae  Trinitatis  ultimo  elapsum,  coram  vestra  reverenda  praesentia  .  .  . 
tractabitur,  ordinabitur,  seu  etiam  statuetur,  et  ad  simul  tractandum,  ordi- 
nandum  et  statuendum,  una  vobiscum  et  vestro  consilio,"  etc.  :  Registrum, 
i.  360. 

*  Sheriff's  account,  a.  d.  1336,  Auditor  i,  No.  i. 

5  Registrum,  iv.  348-350 ;  below,  §  30. 

«  Rot.  i.  Hatfield,  ann.  19,  m.  14,  curs.  30.  This  interesting  document  is 
printed  in  Surtees,  Durham,  iii.  100  ff.,  and  in  Collectanea  ad  statum  civile 
.  .  .  comitatus  Dunelmensis  spectantia  (Darlington,  1775). 

■^  Scriptores  Tres,  App.  No.  cxxviii;  see  also  Chambre,  cap.  iii,  Ibid.,  138. 
Hatfield's  foundation,  after  many  changes  and  chances,  now  survives  as 
Trinity  College. 


§  14]  FUNCTIONS  OF  THE   COUNCIL.  151 

terms  of  the  thirteenth-century  agreement  known  as  Le  Con- 
venit;  the  Bishop  and  his  council  caused  the  records  to  be 
searched  and  concluded  that,  since  the  Convenit  was  still  in 
force,  the  payment  should  be  made/  In  1432  the  council 
was  busy  with  practical  forestry.  The  Bishop  had  leased  a 
certain  tract  of  woodland  to  an  iron-master,  who  was  to  set  up 
forges,  make  charcoal,  and  smelt  the  iron  ore  which  occurs  so 
abundantly  in  the  county  of  Durham.  In  order  to  preserve 
the  forest  it  was  stipulated  that  no  trees  of  a  certain  descrip- 
tion were  to  be  felled  without  the  advice  and  consent  of  the 
council ;  and  that  body  was  further  to  assign  the  proper  sites 
for  the  smithies,  water-wheels,  and  the  like.^  In  1437  we  have  a 
larger  view  of  the  governmental  functions  of  the  council,  in  the 
terms  of  the  agreement  between  the  Bishop  and  Sir  Robert  Ogle, 
constable  of  Norham,  a  document  which  has  already  been  exam- 
ined. In  this  it  was  provided  that  any  danger  threatening  the 
Bishop  or  his  franchise,  of  such  a  nature  that  Ogle  alone  could 
not  meet  it,  should  at  once  be  reported  to  the  Bishop  and  his 
council.^  In  1524  the  council  determined  the  commonable  rights 
of  the  inhabitants  of  the  borough  of  Darlington  in  certain  lands  in 
dispute  between  them  and  the  tenants  of  two  adjoining  manors.* 
On  the  more  strictly  financial  side  of  the  government  of  the 
palatinate  the  council  also  exercised  considerable  influence.  In 
1387  it  managed  the  farming  of  the  borough  of  Durham;  in  a 
document  drawn  up  by  the  council  it  is  provided  that  "  due 
allowance  is  to  be  made  for  delays  [in  payment]  in  case  of  pes- 

1  See  the  Bishop's  warrant  to  the  auditors,  "  Nous  navons  enserchi^rs 
tant  au  plain  nos  muniments  ne  assietz  communez,  ovec  ceulx  de  notre 
conseils,  pour  savoir  qe  faire  deens,"  etc. :  Sheriff's  account,  a.  d.  1410, 
Auditor  i,  No.  2. 

2  Rot.  DD.  Langley,  ann.  9  Hen.  VI,  m.  3  dorse,  curs.  37. 

*  "  Et  si  tiel  chose  soit  ou  aveigne  desore  en  avaunt  qe  purroit  estre 
prejudicielle  au  dit  Evesque,  ou  a  ses  successours  Evesques,  ou  a  dite  fran- 
chise, qe  le  dit  monsieur  Robert  ne  purra  luy  mesme  aider  ni  remedier  sans 
aide  de  dit  Evesque,  ou  de  ses  successours  Evesques  et  du  lour  counsail,  le 
dit  monsieur  Robert  alors  certifiera  ou  monstrera  au  dit  Evesque,  ou  a  ses 
successours  Evesques,  le  pluistost  qil  purra:"  Rot.  DD.  Langley,  ann.  31, 
m.  16,  curs.  37. 

*  Rot.  ii.  Wolsey,  ann.  4,  m.  3  dorse,  curs.  73 ;  cf.  Ibid.,  ann.  16  Hen. 
VIII,  m.  5  dorse,  and  ann.  20  Hen.  VIII,  m.  2  dorse. 


1^2  THE  ASSEMBLY  AND  THE   COUNCIL.        [Ch.  IV. 

tilence  or  the  like,  according  to  the  discretion  of  the  Bishop's 
council."  ^  In  1456  the  steward  of  the  Bishop's  household,  find- 
ing himself  indebted  to  certain  victuallers  and  money-lenders  to 
the  amount  of  ;^i27  2\d.,  was  authorized  by  the  council  to  raise 
this  sum  on  the  Bishop's  possessions  throughout  the  palatinate. 
The  details  of  this  affair  are  obscure,  but  the  writ  to  the  steward 
probably  called  either  for  a  tallage  on  the  Bishop's  manors,  or, 
as  is  more  likely,  for  a  general  settlement  of  arrears.  It  cer- 
tainly was  not  a  tax  of  any  sort.^  At  the  general  audit  of  ac- 
counts in  1472  the  question  of  an  allowance  to  one  of  the 
auditors  for  travelling  and  living  expenses  arose,  and  was  re- 
ferred to  the  council.  The  councillors  caused  the  records  to  be 
searched  for  precedents,  and,  having  satisfied  themselves  that 
the  claim  was  just,  directed  the  allowance  to  be  made.^ 

§  15.    Relations  of  the  Council  and  the  Bishop. 

We  have  now  to  deal  with  an  aspect  of  the  subject  that  involves 
somewhat  larger  interests,  namely  with  the  mutual  relation  of  the 
Bishop  and  his  council.  Instances  of  the  Bishop's  leaning  on  his 
council  for  advice  and  support  have  been  seen  in  the  story  of  Wal- 
cher's  murder,*  in  Farnham's  protracted  suit  with  the  abbot  of 

1  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  32. 

2  The  money  had  been  borrowed  for  the  Bishop's  necessities,  and  the 
steward  was  authorized  to  raise,  collect,  and  receive  it  "  infra  episcopatum 
nostrum  Dunelmensem  ac  in  Norhamshire,  Bedlyngtonshire,  Alvertonshire 
et  Hovedenshire  juxta  formam  et  eff ectum  cujusdam  rotuli  pergamenti,  signo^ 
nostro  manuali  signati  et  signeto  nostro  sigillati,  cujus  vera  copia  praesenti 
est  annexa."  This  was  done  "de  avisamento  et  consideratione  consilii 
nostri  intimi."  (Rot.  iv.  Nevill,  ann.  18,  m.  2,  curs.  45.)  The  vera  copia 
unfortunately  has  disappeared,  but  we  learn  from  the  rest  of  the  document  that 
the  palatine  officers  are  not  to  interfere  in  any  way  "  de  aliquibus  parcellis 
in  dicto  rotulo  contentis,"  but  are  to  be  protected  against  the  audit  by  war- 
rants for  the  said  "parcellae."  It  is  just  possible  that  the  Bishop  was 
demanding  his  revenues  in  advance. 

^  "  Consideratum  est  per  consilium  Domini,  per  inspectionem  compoto- 
rum  praecedentium  tam  temporibus  Robert!  Nevill  nuper  Dunelmensis  epi- 
scopi  quam  Thomae  Langley  praedecessoris  sui,  quod  tales  expensae  dicto 
Willelmo  .  .  .  allocantur :  "  Recaiver-general's  account,  A.  d.  1472,  Auditor 
5,  No.  149. 

*  Above,  pp.  107,  136-137. 


§  15]  RELATIONS  OF  COUNCIL  AND  BISHOP.  153 

S.  Albans,^  and  in  Bek's  effort  to  coerce  the  convent.^  In  1306 
Bishop  Bek  and  another  were  sued  before  the  king's  justices  for  the 
recovery  of  certain  lands ;  whereupon  the  Bishop,  at  the  advice 
of  his  council,  brought  a  counter-suit,  which  his  opponent  said 
was  malicious.  It  is  not  known  what  success  attended  this 
manoeuvre.^  In  an  instance,  in  the  year  1 312,  of  what  has  chari- 
tably been  called  Bishop  Kellaw's  extreme  caution,  the  Bishop 
may  be  seen  sheltering  himself  behind  his  council  against  the 
fulfilment  of  a  distasteful  engagement.  Kellaw  writes  to  Sir 
John  Sandale  in  regard  to  a  promise  made  to  the  latter  at  Tot- 
tenham, saying  that,  when  he  had  laid  the  matter  before  his 
councillors,  they,  by  reason  of  the  nature  of  the  affair  and  the 
grave  consequences  of  a  refusal,  wished  for  more  time  to  delib- 
erate. The  Bishop  therefore  delays  his  final  answer  until  his 
council,  reinforced  by  other  members  who  have  not  yet  arrived, 
shall  have  given  the  business  more  mature  consideration.*  The 
matter  in  question  was  the  discharge  of  the  Bishop's  feudal  ser- 
vice on  the  border,  and  the  Bishop,  having  neglected  this  duty, 
incurred  a  penalty  of  ;^I20.  Sir  John  Sandale  was  at  this  time 
the  locum  tenens  of  the  treasurer,  and  in  13 14  a  writ  witnessed 
by  him  in  that  capacity  was  directed  to  the  Bishop  enjoining 
him  at  once  to  send  the  money  to  the  exchequer.  But  the 
Bishop  and  his  council  determined  to  make  no  return  to  this 
writ,  and  the  matter  drops  there.^  It  is  impossible  to  avoid  the 
conclusion  that  Kellaw  had  come  to  an  understanding  with 
Sandale,  as  a  result  of  which  his  neglect  was  allowed  to  pass 
without  consequences.  In  the  conduct  of  this  whole  affair  the 
Bishop  was  guided  and  supported  by  his  council. 

In  13 15  a  royal  writ  touching  a  suit  then  pending  in  the  pala- 
tine court  came  to  the  Bishop.  This  was  transmitted  to  the 
justices  with  instructions  to  pay  close  attention  to  the  form  and 
words  of  the  writ,  but  to  take  care  that  the  royal  liberty  of  the 

1  Above,  p.  149.  2  Above,  pp.  140-141. 

3  Rot.  Pari.,  35  Edw.  I,  i.  198. 

^  Registrum,  i.  193;  and  see  Ibid.,  iii.  Introd.  cvii-cviii,  where  Sir 
Thomas  Hardy  cites  this  as  an  example  of  Kellaw's  virtuous  caution. 

^  "  Breve  regis  pro  solutione  finis  facti  pro  servitio  debito  .  .  .  Delibera- 
tum  fuit  per  consilium  apud  Creyk'  quod  istud  breve  non  retornaretur : " 
Ibid.,  ii.  loio-ioii. 


154  THE  ASSEMBLY  AND   THE   COUNCIL.       [Ch.  IV. 

Bishop  should  suffer  no  harm.^  It  is  not  stated  that  this  was 
done  by  the  council,  but  the  clear  intention  of  the  instructions 
is  quite  of  a  piece  with  the  case  just  considered,  and  there  can  be 
little  doubt  that  the  council  was  as  responsible  for  the  latter  as 
for  the  former.  In  132 1  occurred  a  case  in  which  the  Bishop's 
policy  was  shaped  and  controlled  by  his  council,  although  the 
affair  seems  to  have  been  managed  by  a  single  member  of  that 
body.  The  archdeacon  of  Durham  had  quarrelled  with  the  prior 
about  his  jurisdiction  in  the  churches  appropriated  to  the  convent. 
The  archdeacon,  seeing  that  he  could  accomplish  nothing  by 
regular  methods,  succeeded  in  corrupting  Richard  de  Eriom,  a 
councillor  of  great  influence  with  the  Bishop.  At  Eriom's  sug- 
gestion the  Bishop  took  up  the  archdeacon's  cause  and  threat- 
ened to  depose  the  prior.  The  quarrel  raged  for  four  years,  but 
in  the  end  Eriom  exchanged  the  benefice  which  he  held  of  the 
prior  and  convent,  and  the  Bishop  accepted  a  present  of  money 
from  the  monks  and  decided  in  their  favor.^ 

Eriom  must  have  obtained  an  almost  unlimited  influence  over 
Bishop  Beaumont,  for  his  pontificate  furnishes  an  unique  in- 
stance of  a  successful  traverse  of  the  Bishop's  will  by  the  council. 
The  Bishop  had  obtained  a  papal  bull  permitting  him,  in  the 
event  of  a  vacancy  of  the  priorate,  to  designate  any  member  of 
the  convent  to  be  the  new  prior,  and  another  authorizing  him 
to  take  a  fourth  part  of  the  revenues  of  the  convent  while  the 
war  with  Scotland  lasted.  Because  these  bulls  were  obtained  by 
unfair  means,  however,  his  council  refused  to  allow  him  to  use 
them.^  This  was  probably  a  case  of  flagrant  injustice  on  the 
part  of  the  Bishop,  who  was  an  erratic  man  and  of  no  great 

1  Registrum,  ii.  1044. 

2  "Videns  ergo  Archidiaconus,  quod  sic  non  proficeret,  conduxit  magi- 
strum  Ricardum  de  Eriom,  tunc  ducem  et  consiliarium  Episcopi.  Ad  cujus 
instigationem  Episcopus  se  fecit  partem  contra  Priorem,  comminatusque  est 
Priorem  deponere:"  Graystanes,  cap.  xl,  in  Scriptores  Tres,  103-104. 
Graystanes  relates  the  whole  story  in  this  chapter. 

8  "Bullam  unam  habuit  ad  praeficiendum  in  Priorem  Dunelmensem 
quemcunque  de  domo  vellet ;  aliam  ad  habendum  quartam  partem  bonorum 
Prioratus  dum  guerra  Scotiae  duraret.  Sed  quia  istae  Bullae  impetratae 
erant  tacita  veritate  et  suggesta  falsitate,  noluit  ejus  concilium  eis  uti : " 
Graystanes,  cap.  xlviii,  Ibid.,  118. 


§  15]  RELATIONS  OF  COUNCIL  AND  BISHOP.  155 

sanctity,   according    to   the    monkish    historian's    account    of 
him. 

The  conclusions  in  regard  to  the  council  may  be  summed  up 
somewhat  in  this  fashion.  From  the  Norman  Conquest  onward 
the  Bishop  was  surrounded  by  a  more  or  less  limited  body  of  ad- 
visers, composed  of  the  great  officers  of  his  household  and  of  the 
palatinate,  a  number  of  feudal  tenants-in-chief,  and  possibly  a  few 
other  councillors  of  humbler  rank.  The  number  of  this  body 
did  not  vary  much,  but  the  individuals  composing  it  changed 
constantly.  In  the  course  of  the  thirteenth  century  a  lower 
and  more  permanent  class  of  councillors,  largely  clerics  and 
jurists,  began  to  become  prominent,  and  the  feudal  or  noble 
element  was  gradually  subordinated  or  eliminated  by  the  prac- 
tice of  choosing  certain  individuals  to  be  of  the  council  for  a 
fixed  time  and  at  a  salary.  In  the  succeeding  centuries  the 
body  became  smaller  and  more  manageable,  and  the  legal  and 
clerical  element  continued  to  predominate.  This  body  had  vari- 
ous advisory,  financial,  and  ministerial  functions,  and,  in  view 
of  the  restricted  quality  of  the  problem  of  government  in  the 
palatinate,  may  be  termed  a  rudimentary  ministry  of  state. 


CHAPTER  V. 

THE  JUDICIARY   OF  THE  PALATINATE. 
§  16.    Development  of  the  Judiciary  from  635  to  1195. 

The  student  of  English  legal  institutions  will  find  much  to 
interest  him  in  the  legal  history  of  the  county  palatine  of  Dur- 
ham. He  may  read  there  the  story  of  a  conflict  in  which  the 
common  law  displayed  many  of  its  most  striking  characteristics, 
and  the  history  of  the  development  of  a  judicial  system  under 
circumstances  which  might,  but  for  certain  combinations  of 
political,  economic,  and  personal  interests,  have  obtained  through- 
out the  kingdom.  The  story,  then,  since  it  may  help  us  to  see 
how  the  legal  system  of  England  grew  up  and  what  it  escaped, 
is  worth  telling. 

Our  first  task  will  be  to  discover  so  far  as  possible  the  origin 
of  the  palatine  jurisdiction  in  so  far  as  it  related  to  the  adminis- 
tration of  justice,  and  to  trace  its  growth,  the  mutual  relations 
of  the  courts  which  were  produced  in  the  course  of  that  growth, 
and  the  eventual  disintegration  of  the  entire  system.  In  fine, 
we  must  study  the  organization  from  within  before  we  are  pre- 
pared for  our  second  task,  before  we  may  pass  out  of  the  palat- 
inate and  fix  our  attention  on  the  more  interesting  spectacle  of 
the  relations  of  the  legal  institutions  of  the  palatinate  with 
those  of  the  kingdom. 

In  the  first  division  of  our  subject  it  will  be  necessary  to 
show,  as  best  we  may,  how  there  grew  up  in  the  patrimony  of 
S.  Cuthbert,  the  possessions  that  eventually  crystallized  into  the 
bishopric  between  Tyne  and  Tees,  a  great  feudal  jurisdiction. 
This  process  occupies  the  centuries  that  lie  between  the  foun- 
dation of  the  see  of  Lindisfarne  in  635  and  the  death  of 
Bishop  Pudsey  in  1195.  The  next  step  will  show  the  transition 
in  one  century  (1206-13 10)  from  feudal  to  palatine  jurisdiction, 
together  with  the   establishment   of   a   judicial   machinery  in 


§  1 6]  DEVELOPMENT  OF  THE  JUDICIARY.  1 5/ 

the  palatinate  which  effectually  excluded  that  of  the  kingdom. 
Passing  then  to  the  two  centuries  that  lie  between  the  death  of 
Edward  I  and  the  accession  of  Henry  VII,  we  shall  examine 
the  various  phases  of  the  development  of  the  palatine  judiciary, 
the  courts  and  their  mutual  relations,  the  judicial  officers,  and  the 
like.  We  may  then  return  to  the  larger  question,  and  observe 
how  the  whole  system  was  undermined  and  its  immunities  were 
stultified  under  the  combined  pressure  of  various  forces,  of  which 
the  most  important  were  the  rapid  growth  of  legal  science,  the 
increasing  power  of  the  crown  and  the  consequent  centralization 
of  government,  the  anomalous  position  of  the  Bishops,  and  the 
superannuation  of  the  palatinate.  It  will  be  necessary  to  notice, 
however,  that  certain  circumstances  in  the  course  of  the  fifteenth 
century,  such  as  the  geographical  position  of  the  bishopric  and 
the  general  disorder  of  the  period,  tended  to  preserve  somewhat 
beyond  their  time  the  liberties  of  the  palatinate.  The  last  step, 
covering  but  a  small  part  of  the  Tudor  period,  brings  us  to  the 
practical  extinction  of  the  palatine  judiciary  by  act  of  parliament 
in  1536.  The  discussion  of  the  courts  of  chancery  and  admiralty 
will  lead  us  far  beyond  this  date;  and  we  shall  undertake  a 
hasty  survey  of  the  legal  history  of  the  palatinate  down  to  the 
present  day. 

We  have  already  encountered  the  obscurities  that  overhang 
the  origin  and  early  history  of  the  palatinate ;  we  have  to  do 
now  with  a  smaller  and  more  manageable  difficulty,  namely  with 
the  growth  of  a  seignorial  jurisdiction.  It  will  be  well  to  begin 
by  examining  whatever  sources  are  available.  At  the  outset  it 
must  be  acknowledged  that  until  the  first  quarter  of  the  twelfth 
century  we  know  only  what  the  chroniclers  can  tell  us.  We 
learn  from  them  that,  on  S.  Cuthbert's  reluctant  elevation  to  the 
see  of  Lindisfarne  in  685,  Egfrith,  king  of  Northumbria,  endowed 
the  saint  (and  by  consequence  the  see)  with  lands  in  those 
parts  of  his  kingdom  which  were  later  to  become  Northumber- 
and^  and  Yorkshire.^     Pious   kings   and   nobles  continued   to 

1  It  will  be  remembered  that  up  to  the  present  century  Norhamshire, 
Islandshire,  and  Bedlington,  in  the  county  of  Northumberland,  were  reckoned 
parcels  of  the  county  of  Durham. 

2  This  transaction   is  also  recorded  in  a  charter  ascribed  to   Egfrith 


158  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

increase  this  little  patrimony,  until  in  883  Alfred,  grateful  for 
the  miraculous  encouragement  he  had  received  in  a  vision  from 
S.  Cuthbert,  organized,  in  concert  with  Guthred  the  Dane,  a 
general  confirmation  of  the  liberties  and  possessions  of  the  saint. 
Not  content  with  confirmation,  the  two  kings  so  increased 
the  patrimony  of  S.  Cuthbert  that  it  included  all  the  territory 
between  the  Tyne  and  the  Wear,  — about  one-half  of  the  present 
county,  —  with  the  right  of  sanctuary  and  the  usual  immunities. 
These  privileges  were  to  extend  to  any  lands  which  the  see 
might  in  future  acquire  whether  by  gift  or  by  purchase.^  The 
story,  as  we  have  it  from  Symeon  of  Durham,  is  the  text  of  a 
charter  imported  bodily  into  the  narrative ;  even  the  familiar 
condemnatory  clause  has  not  been  omitted.  This  is  the  central 
point  of  the  story  ;  but  we  continue  to  hear  of  donations  to  God 
and  S.  Cuthbert,^  and  these  carry  us  down  to  a  point  just  before 
the  Conquest,  when  we  have  to  do  with  charters  forged  just 
after  that  event.  But  these,  as  will  be  seen,  are  not  charters  of 
foundation ;  they  do  not  profess  to  create  the  immunities  of  S. 
Cuthbert's  successors,  but  rather  to  confirm  and  amplify  those 
immunities.^ 

We  are  free  to  doubt  as  many  of  Symeon's  details  as  we 
please,  but  we  may  not  altogether  reject  the  substance  of  his 
story.  He  wrote,  it  is  true,  as  late  as  1 104,  but  on  the  other 
hand  he  relied  largely  on  Beda  and  had  access  to  the  lost 
Northumbrian  annals,  which  would  be  likely  to  mention  any 
gift  to  the  church.  We  must  remember,  too,  the  fervid  and 
persistent  veneration  in  which  the  body  of  S.  Cuthbert  was 
held  by  Englishmen  of  the  middle  ages.  It  is  not  fantastic  to 
say  that  the  incorruptible  body  of  the  saint  was  the  nucleus  of 
the  temporal  power  of  the  Bishops,  his  successors.  In  the 
indisputable  existence  of  this  relic,  during  four  centuries  before 
the  Norman  Conquest,  in  various  parts  of  what  was  later,  to 

(Kemble,  Codex  Diplomaticus,  i.  29),  a  most  unblushing  forgery,  which 
was  subsequently  confirmed  by  Henry  VI  (Rot.  Pat.  11  Hen.  VI,  roll  ii.  m. 
22).     It  contains  a  grant  of  regalities. 

1  Symeon,  i.  62,  69-71,  204-207. 

2  Monasticon,  i.  234-235. 

•  Symeon,  i.  97,208,  212-213. 


§  i6]  DEVELOPMENT  OF  THE  JUDICIARY,  159 

become  the  county  palatine,  may  be  found  a  certain  corrobora- 
tion of  Symeon's  story. 

Let  us  see  now  how  matters  stood  at  the  time  of  the  Conquest. 
If  we  find  the  Bishop  of  Durham  in  possession  of  jurisdiction,  we 
shall  be  inclined  to  assume,  in  the  absence  of  any  record  of  dona- 
tions from  the  Conqueror  and  in  view  of  the  evidence  already 
considered,  that  this  jurisdiction  was  inherited  from  more  ancient 
times.  There  is  no  record  of  donations  from  the  Conqueror,  and 
yet  the  way  is  not  clear,  for  the  existence  of  seignorial  jurisdic- 
tion before  the  Conquest  has  been  called  into  question  and  even 
denied.^  But  if  we  are  willing  to  admit  that  before  the  Con- 
quest the  church  of  S.  Cuthbert  was  a  great  landed  proprietor  — 
and  it  is  impossible  to  avoid  the  admission  —  we  shall  find  Pro- 
fessor Maitland  forcing  us  to  the  conclusion  that  the  church 
enjoyed  jurisdiction  also.^  From  Domesday  Book,  moreover,  we 
get  important  though  indirect  testimony.  Durham,  as  we  know, 
was  not  included  in  the  survey,  but  it  is  recorded  that  neither 
king  nor  earl  had  any  "  custom,"  or  profitable  rights,  over  the 
lands  of  S.  Cuthbert  in  Yorkshire.^  In  the  face  of  what  we  have 
heard  from  Symeon  and  of  what  we  know  of  the  endowment  of 
other  great  English  churches,  Winchester,  Worcester,  and  York,* 
it  is  impossible  to  suppose  that  the  church  of  S. Cuthbert  enjoyed 
immunities  in  Yorkshire  not  accorded  to  it  in  Durham. 

Before  the  close  of  the  eleventh  century  there  is  unmistakable 
evidence  of  the  existence  of  a  court  of  justice  in  the  Bishop's 
hands.  The  story  of  the  events  leading  up  to  the  murder  of 
Bishop  Walcher  in  1080  brings  out  this  fact.  We  read  of  the 
rivalry  of  two  of  the  Bishop's  advisers,  Liulf  and  Leobwine. 
There  had  been  ill  feeling  between  them,  and  Leobwine  would 
often  make  light  of  Liulf 's  judgments  and  opinions,  "judicia 
atque  consilia."  Frequently  too,  when  arguing  with  him  before 
the  Bishop,  Leobwine  would  exasperate  his  enemy  with  harsh 

1  Adams,  The  Anglo-Saxon  Courts  of  Law,  in  Essays  in  Anglo-Saxon 
Law,  1-54;  cf.  Stubbs,  i.  124-126. 

2  Maitland,  Domesday  Book  and  Beyond,  258-292;  for  ecclesiastical 
franchises,  cf.  Ibid.,  Z^j. 

8  Domesday  Book,  i.  298b. 

*  Maitland,  Domesday  Book  and  Beyond,  Zt, 


l60  THE  JUDICIARY  OF  THE  PALATINATE,      [Ch.  V. 

.words.  On  one  occasion,  when  Liulf  had  made  a  judgment, 
"  legalia  quaeque  et  recta  decernet,"  Leobwine  was  more  than 
usually  insulting ;  Liulf  answered  him  sharply  and  at  once  left 
the  moot-stead,  "placiti  locus."  We  need  not  linger  over  the 
end  of  the  story :  Liulf  was  assassinated,  and  in  revenge  his 
relatives  shockingly  murdered  the  Bishop.^  The  words  of  the 
original  are  significant;  the  Bishop,  as  lord,  is  presiding  over 
the  county  court,  for  as  Bishop  he  no  longer  has  any  place 
there,  and  his  advisers,  Liulf  and  Leobwine,  are  standing  among 
the  doomsmen  who  make  the  judgment. 

Finally  there  is  good  reason  to  believe  that  before  the  close 
of  the  eleventh  century  the  Bishops  of  Durham  had  their  own 
sheriffs,  and  by  consequence  the  court  over  which  the  sheriff 
presided.     But  this  point  has  already  been  noticed.^ 

All  this  brings  us  to  the  first  half  of  the  twelfth  century,  with 
the  conclusion  that  the  Bishops  of  Durham  already  possessed 
considerable  seignorial  jurisdiction  inherited  from  some  period 
earlier  than  the  Norman  Conquest.  Here  we  are  confronted  with 
a  mass  of  new  material  in  the  shape  of  the  self-styled  foundation 
charters  of  the  convent  of  Durham.  The  convent  was  founded 
by  Bishop  William  de  S.  Carileph  in  1083,  and  these  documents 
were  forged  at  some  time  during  the  first  quarter  of  the  twelfth 
century.^  In  them  the  Bishop  is  represented  as  conferring  ex- 
tensive possessions  and  jurisdiction  on  the  newly-founded  com- 
munity, and  there  can  be  no  doubt  that  the  convent  did  acquire 
considerable  jurisdiction,  and  probably  at  this  period.  At  any 
rate,  in  Henry  IFs  reign  the  Bishop  and  prior  were  already 
quarrelling  over  their  respective  judicial  privileges,  and  the  dis- 
pute was  then  referred  to  an  earlier  time.*    There  is  no  reason 

1  Anglo-Saxon  Chronicle,  i.  351;  Florence  of  Worcester,  ii.  13-16; 
Symeon,  i.  116-118,  ii.  208-211. 

2  The  whole  question  is  discussed  above,  §  9.  See  also  Hutchinson, 
Durham,  i.  165 ;  Reginaldus  Dunelmensis,  Libellus  (Surtees  Soc),  ioi-id2, 
205 ;  Scriptores  Tres,  App.  Nos,  xx,  xxi. 

8  Feodarium,  Introd.  xi,  xxxi-lxxx.  The  charters  are  here  printed, 
together  with  Dr.  Greenwell's  demonstration  of  their  spuriousness.  These 
documents  have  found  a  more  ingenuous  reception  in  Monasticon,  i.  234,  and 
Scriptores  Tres,  App.  Nos.  i-xv. 

*  ♦'  Igitur  cum  temporibus  Hugonis  [et]  Philippi  Episcoporum  .  .  .  mul- 


§  i6]  DEVELOPMENT  OF  THE  JUDICIARY.  l6l 

to  suppose  that  the  charters  in  question  do  not,  like  other 
medieval  forgeries  of  a  certain  class,  truthfully  represent  the 
condition  of  things  at  the  time  they  were  made.  The  Bishop 
accordingly  founded  the  convent  and  endowed  it  with  jurisdic- 
tion, but  for  this  purpose  he  must  himself  have  possessed  con- 
siderable jurisdiction.  Finally,  in  a  charter  of  Henry  II  it  is 
provided  that  the  Bishop  of  Durham  and  his  successors  are  to 
have  their  courts  in  like  manner  as  his  predecessors  had  them 
in  the  time  of  Henry  I.^ 

Let  us  see  now  what  we  have  learned.  We  have  marshalled 
a  column  of  small  facts  and  indications,  meagre,  it  is  true,  and 
not  always  illuminative,  but  at  least  coherent.  If  we  have 
learned  nothing  or  next  to  nothing  about  the  organization  and 
internal  arrangement  of  the  Bishop's  court,  we  have  seen  the 
continuous  existence  of  such  a  court  from  a  period  long  before 
the  Norman  Conquest.  Reasoning  from  analogy  we  shall  not 
find  it  very  difficult  to  construct  some  adequate  idea  of  the 
tribunal  in  question.  Finally  —  and  this  is  of  most  conse- 
quence —  we  have  a  clue  by  which  we  may  pass  back  from  the 
comparative  light  of  Henry  II's  reign,  through  the  obscurities  of 
the  anarchy  in  the  time  of  Stephen  and  the  silence  of  the  Nor- 
man period,  into  the  darkness  of  the  Anglo-Saxon  constitution. 

If  we  have  called  the  reign  of  Henry  II  a  period  of  compara- 
tive light,  we  must  remember  the  other  term  of  the  comparison 
and  not  expect  too  much.  Hugh  Pudsey,  who  sat  at  Durham 
from  1 153  until  1195,  was  a  cousin  of  Henry  II.2  This  fact 
perhaps  contributed  to  the  success  with  which  he  preserved  the 
liberties  of  his  province  in  face  of  the  searching  reforms  of  the 
first  Angevin  king.  At  all  events,  four  charters  which  he  ob- 
tained from  Henry  survive  and  have  considerable  bearing  on 
the  subject  in  hand.  The  king  grants  that  Bishop  Hugh  shall 
have  "  all  lands,  customs,  laws,  and  benefits  of  which  his  church 
was  possessed  on  the  day  on  which  Bishop  William  I  was  living 

tas  controversias  et  graves  querelas  inter  eosdem  Episcopos  et  Priorem  .  .  . 
frequenter  exortas  cognovissemus :  "  Le  Convenit,  in  Feodarium,  212. 

^  Scriptores  Tres,  App.  No.  xxxii. 

2  Both  Stephen  and  Henry  in  their  charters  describe  Pudsey  as  "  cog- 
natus  meus."    See  Scriptores  Tres,  App.  Nos.  xxvii,  xxxii. 

II 


1 62  THE  JUDICIARY  OF  THE  PALATINATE.     [Ch.  V. 

and  dead"  (1096)  ;i  that  the  Bishop  shall  have  all  liberties, 
free  customs,  and  exemptions  (^quietancias)  which  his  predeces- 
sors had  enjoyed  in  the  time  of  king  Henry  [I]  or  any  other  of 
the  king's  ancestors ; "  ^  that  "  the  men  of  S.  Cuthbert  and  of 
the  monks  of  Durham  shall  be  free  from  all  shires,  hundreds, 
trithings,  and  wapentakes,  as  well  as  from  aids  of  sheriffs  and 
reeves,  and  are  to  have  their  court  as  fully  and  freely  as  they 
had  it  in  the  time  of  king  Henry  the  king's  grandfather ; "  ^  and, 
finally,  that  Bishop  Hugh  "  shall  have  his  court  in  respect  to  all 
things  about  which  his  predecessors  had  their  courts  in  the  time 
of  king  Henry  my  grandfather,  and  the  men  of  the  bishopric 
shall  not  plead  elsewhere  but  in  the  Bishop's  court  until  he 
make  default  of  justice."* 

Here,  then,  is  the  picture  of  the  court  of  a  lord  having  high 
justice,  whose  men,  relieved  from  all  other  legal  and  judicial 
responsibilities,  are  answerable  only  to  the  tribunal  of  their  lord. 
These  conditions,  moreover,  are  clearly  stated  to  have  existed  in 
the  time  of  Henry  I,  for  the  terms  of  the  charters  forbid  us  to 
understand  them  as  grants  rather  than  as  confirmations.  We  do 
not  learn  the  exact  nature  of  the  court,  but  it  could  not  have 
differed  materially  from  the  ordinary  county  and  hundred  courts, 
if  indeed  the  Bishop's  jurisdiction  extended  over  the  entire 
county.  But  before  this  is  shown  to  have  been  the  case,  atten- 
tion must  be  called  to  the  fact  that  the  term  "  county  of  Dur- 
ham "  is  essentially  modern ;  throughout  the  middle  ages  and 
long  afterward  we  hear  only  of  "  the  bishopric."  With  this  fact 
in  mind,  it  will  be  possible  to  understand  how  the  Bishop's  juris- 
diction might  be  complete  and  exclusive  although  a  portion  of 
the  modern  county,  the  wapentake  of  Sadberg,  was  still  in  the 
king's  hands.^  With  this  reservation  the  proof  of  the  Bishop's 
exclusive  jurisdiction  may  be  considered. 

1  Scriptores  Tres,  App.  No.  xxxiv.  On  the  phrase  "leges  et  consue- 
tudines,"  cf.  Maitland,  Domesday  Book  and  Beyond,  76-79. 

2  Scriptores  Tres,  App.  No.  xxxv. 

8  Ibid.,  No.  xxxiii.  ■*  Ibid.,  No.  xxxii. 

^  Sadberg  is  the  southeastern  corner  of  the  modern  county ;  it  was  pur- 
chased from  the  crown  by  Bishop  Pudsey,  who  was  outrageously  swindled 
in  the  transaction.  See  Coldingham,  cap.  ix,  in  Scriptores  Tres,  14-15. 
The  charters  are  printed  in  Ibid.,  App.  Nos.  xl-xlii. 


§  i6]  DEVELOPMENT  OF  THE  JUDICIARY.  163 

In  a  final  charter  the  king  states  that,  by  the  advice  of  his 
barons  and  with  the  consent  of  the  Bishop,  he  is  about  to  send 
his  justices  into  the  lands  of  S.  Cuthbert  to  put  into  execution 
his  assize  with  regard  to  thieves,  murderers,  and  robbers.  This 
step  is  not  to  be  regarded  as  a  precedent  in  the  king's  time  or 
in  that  of  his  successors  ;  it  is  necessary  to  execute  justice,  but 
the  king  wishes  that  the  lands  of  S.  Cuthbert  shall  have  their 
liberties  and  ancient  customs  as  freely  as  ever  they  had  them.^ 
We  have  to  do  here  with  a  charter  of  indemnity ;  the  assize 
referred  to  is  that  of  Clarendon,  which,  it  will  be  remembered, 
provides  that  all  qualified  persons  shall  attend  the  county  court 
to  meet  the  justices,  and  that  no  franchise  shall  exclude  the 
sheriff",  who  is  preparing  for  these  visitations.^  We  infer,  then, 
that  the  earlier  judicial  and  financial  eyres  had  not  included 
the  bishopric,  and  that  such  business  as  was  reserved  in  other 
counties  for  the  king's  justices  was  in  Durham  transacted  in 
the  Bishop's  court.  From  all  this  it  may  be  concluded  that 
in  1166-1167  the  Bishop  of  Durham  enjoyed  complete  and 
exclusive  jurisdiction  in  the  bishopric,  and  that  he  and  his 
predecessors  had  held  this  privilege  for  a  period  long  enough 
to  be  regarded,  in  the  brief  memory  of  the  middle  ages,  as 
immemorial. 

During  the  reign  of  Henry  II  the  judicial  system  of  the 
kingdom  was  developing  with  amazing  rapidity.  Under  these 
circumstances  we  shall  expect  to  find  some  corresponding 
growth  in  the  palatinate,  or  else  the  abolition  of  at  least  the 
legal  side  of  the  institution.  It  is  not  consistent  with  human 
nature  that  men  should  see  their  neighbors  and  brothers  en- 
joying advantages  which  are  denied  to  them,  without  at  least 
making  a  protest.  Thus,  when  the  convenience  of  the  new 
assizes  was  once  understood,  men  in  Durham  would  no  longer 
be  content  to  go  to  the  duel  for  their  free  tenements,  or  holdings, 
while  but  a  few  miles  away,  at  York  or  Newcastle,  their  friends 
were  putting  themselves  on  the  country.  It  is  likely  that  Bishop 
Pudsey  understood  the  situation  perfectly.  That  he  was  an 
ambitious  man,  seeking  to  strengthen  his  own  feudal  position,  is 

^  Scriptores  Tres,  App.  No.  xxxi. 

2  Assize  of  Clarendon,  §§  8,  11,  in  Stubbs,  Select  Charters,  144. 


l64  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

well  known.^  He  was  familiar  with  the  legal  reforms  introduced 
by  Henry  H,  for  he  had  acted  as  a  royal  justice  in  eyre,^  and  in 
the  beginning  of  Richard's  reign  he  had  been  justiciar  for  the 
northern  half  of  the  kingdom.^  If,  then,  it  is  found  that  very 
shortly  after  Pudsey's  death  the  judiciary  of  the  palatinate  shows 
considerable  development,  it  will  be  natural  to  ascribe  the  change 
to  the  efforts  of  that  Bishop.  This  conclusion  is  corroborated 
by  the  chronicler,  who  writes  with  some  bitterness  that  Bishop 
Pudsey  completely  altered  the  old  laws  and  institutions  of  the 
bishopric* 

Only  by  working  backward  from  a  knowledge  of  the  palatine 
legal  system  in  the  first  quarter  of  the  thirteenth  century,  and 
by  supplementing  this  survey  with  analogies  drawn  from  the 
general  system,  is  it  possible  to  arrive  at  the  changes  introduced 
by  Bishop  Pudsey.  Still,  one  scrap  of  definite  information 
is  vouchsafed  us.  Eleven  years  after  Pudsey's  death  we  hear 
that  he  had  been  accustomed  to  hold  pleas  in  his  court  by  his 
own  writs  and  not  by  those  of  the  king,  though  from  the  litiga- 
tion in  which  this  fact  is  developed  we  also  learn  that  one  might 
not  have  the  grand  assize  in  the  court  at  Durham,  nor  yet  by 
the  king's  writ  take  one's  plea  out  of  that  court.^  Reading  this 
in  connection  with  what  we  know  of  Pudsey's  life,  ambitions, 
and  opportunities,  we  may  form  a  pretty  clear  notion  of  what  he 
accomplished  in  the  way  of  legal  changes.  We  may  note  his 
achievement  in  the  fact  that,  in  the  face  of  the  expansion  of 
legal  science  and  its  expression  in  a  more  articulate  judicial 
machinery,  he  formulated  and  applied  the  doctrine  of  the  suffi- 
cient and  exclusive  competence  of  the  Bishop's  court  in  the 

^  He  purchased  from  the  king  the  earldom  of  Northumberland  as  well  as 
the  wapentake  of  Sadberg.     See  above,  p.  162,  note  5. 

2  Foss,  Judges,  i.  509-512. 

8  Benedictus  Abbas,  ii.  loi ;  Coldingham,  cap.  ix,  in  Scriptores  Tres,  14. 

*  "  Ut  quorundam  haereditates  et  jura  videretur  in  extraneos  contulisse,  et 
novis  institutionibus  antiquas  episcopatus  leges  et  consuetudines  penitus 
immutasse  :"  Coldingham,  cap.  iv,  in  Scriptores  Tres,  8.  It  is  worth  remem- 
bering in  this  connection  that  Pudsey  sat  at  Durham  for  forty-two  years,  a 
pontificate  overlapping  at  both  ends  the  reign  of  Henry  II. 

fi  Curia  Regis,  8  John,  roll  36,  m.  13  (Northumb.).  See  also  below, 
App.  i. 


§  17]   CHANGE  FROM  A  FEUDAL  TO  A  ROYAL  COURT.    165 

bishopric.^  Pudsey  probably  carried  the  idea  no  farther  than 
this,  but  it  contained  in  itself  sufficient  impetus  to  bear  it  to  its 
logical  conclusion,  namely,  to  the  organization  of  the  feudal 
court  of  the  palatinate  into  a  diminutive  model  of  the  royal 
judiciary. 

§  17.    The  Transition  from  a  Feudal  to  a  Royal  Court. 

Several  surviving  records  that  form  landmarks  in  this  process 
of  development  must  now  be  examined.  First  to  be  noticed  is 
the  evidence  that  has  come  by  circuitous  courses  from  the  second 
year  of  John.  In  1243  William,  abbot  of  S.  Mary's,  York,  brought 
before  the  Bishop's  justices  an  action  of  quare  impedit  in  respect 
to  the  church  of  Gainford  in  Durham  against  John  de  Balliol. 
The  abbot  rested  his  claim  to  the  advowson  on  a  fine  made 
between  the  father  and  uncle  of  John  and  his  own  predecessor. 
To  this  John  replied  that  he  was  not  bound  to  plead,  because  the 
document  in  question  was  made  at  Westminster  in  the  year 
1200,  when  PhiHp,  Bishop  of  Durham,  was  alive;  that  from  this 
it  followed  that  the  fine  ought  not  to  have  been  levied  outside  the 
liberty  of  Durham,  and  could  not  rightly  have  been  so  levied ;  that 
if  the  fine  were  authentic,  then  it  had  been  made  in  contravention 
of  the  royal  liberty  of  Durham  and  by  deception  of  the  court  at 
Westminster.  The  abbot,  in  reply,  admitted  that  the  transac- 
tion ought  to  have  taken  place  in  the  palatine  court,  but  pointed 
out  that,  since  the  Balliols  had  declined  either  to  do  homage  to 
the  Bishop  or  to  plead  in  his  court,  the  contemporary  abbot  was 
forced  to  resort  to  the  royal  court  at  Westminster.  Balliol 
replied  that,  whatever  may  have  been  the  practice  of  his  ances- 
tors, in  theory  they  had  always  been  under  the  obligation  of  ren- 
dering homage  and  suit  of  court  to  the  Bishop ;  and  that  the 
document  therefore  was  as  though  made  in  one  county  in  re- 
spect to   land  in  another.^    The   outcome   of   the  case  is  not 

1  Pudsey  by  no  means  invented  this  doctrine,  for  it  is  expressed  by 
Symeon  (i.  70-71)  in  the  opening  years  of  the  century;  but,  although  in 
existence,  it  had  up  to  this  point  encountered  nothing  but  a  laissez-faire 
treatment;  Pudsey  maintained  it  in  the  face  of  great  and  increasing 
pressure. 

2  This  is  from  an  exemplification  of  Bishop  Farnham's  plea  rolls,  made  in 
the  late  sixteenth  century.    See  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 


l66  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

known.  The  point  to  notice  is,  that  as  early  as  1200  the  theory 
of  the  law  allowed  to  the  palatine  courts  exclusive  jurisdiction 
over  land  in  the  palatinate. 

We  pass  now  to  a  case  that  came  up  before  the  king's  justices 
in  Northumberland  between  1205  and  1208.  Geoff rey  Fitz  Geof- 
frey related  that,  being  impleaded  for  his  free  tenements^  by 
the  Bishop's  writ  and  in  the  Bishop's  court,  he  had  put  himself 
on  the  country.  On  this  he  was  told  that  he  might  not  have  the 
grand  assize  in  the  Bishop's  court ;  whereupon  he  brought  the 
king's  writ  (de pace)  forbidding  the  Bishop  to  continue  the  plea. 
The  court,  however,  disregarded  the  king's  precept  and  substan- 
tially forced  Geoffrey  to  the  wager  of  battle.  Geoffrey  then 
came  before  the  king's  justices  and  contended  that  he  should 
not  have  been  compelled  to  plead  in  the  Bishop's  court,  since  no 
free  man  ought  to  be  impleaded  in  respect  to  his  free  tenements 
except  by  the  king's  writ  or  that  of  his  chief  justice.  The  Bishop 
thereupon  produced  a  charter  of  the  king  confirming  to  him  all 
privileges  enjoyed  by  his  predecessor.  Bishop  Pudsey,  and  main- 
tained that  Pudsey  had  held  pleas  by  his  own  writ.  This  issue 
was  referred  first  to  a  jury  of  twenty-four  knights  from  York  and 
Northumberland,  having  no  interest  in  the  liberty  of  Durham, 
and  finally  to  twelve  knights  produced  by  the  Bishop  himself 
from  his  liberty.  We  are  left  in  ignorance  as  to  the  solution  of 
the  difficulty,  but  the  novelty  of  the  question  and  the  perplexity 
of  the  justices  appear  clearly  enough  in  the  closing  words  of 
the  record,  whether  spoken  in  court  or  added  by  the  reporter 
we  do  not  know :  "  Quo  teneam  nodo  mutantem  Prothea  vultus."  ^ 

What  now  does  this  imply?  The  men  of  the  bishopric,  as 
we  know,  were  obliged  to  plead  in  the  Bishop's  court  until  he 
made  default  of  justice.  But  these  men  must  have  seen  the 
convenience  of  the  inquest,  at  least  when  the  king's  eyre  was 
held  in  the  bishopric  to  execute  the  Assize  of  Clarendon,  and 
probably  frequently  afterward  when  they  sought  or  defended  lands 
in  Yorkshire,  Northumberland,  or  other  adjacent  counties.    They 

^  /.  e.  for  two  holdings  within  the  bishopric. 

2  Curia  Regis,  8  John,  roll  36,  m.  13  (Northumb.).  The  charter  is  5  John, 
m.  1 1,  Rot.  Chart,  (ed.  Hardy),  120  b.  The  verse  is  misquoted  from  Horace, 
Epist.,  lib.  i.  epist.  i.  1.  90.     This  case  will  be  found  in  full  in  App.  i.  below. 


§  17]   CHANGE  FROM  A  FEUDAL  TO  A  ROYAL  COURT.    167 

had  heard,  too,  that  no  free  man  might  be  impleaded  for  his  free 
tenement  except  by  the  writ  of  the  king  or  of  his  chief  justice. 
Finally,  they  were  ready  upon  occasion  to  put  their  experience 
into  play,  to  demand  what  they  conceived  or  asserted  to  be  their 
rights.  Thus  pressure  from  within  was  put  upon  the  Bishop's 
judiciary,  to  cause  it  either  to  increase  its  resources  or  to  aban- 
don its  pretensions  and  step  aside.  The  second  alternative  was 
probably  the  one  intended  by  the  men  of  the  bishopric.^  The 
end  of  the  story  may  be  read  on  the  charter  roll.  In  1208  the 
king  granted  a  charter  to  the  knights  and  freeholders  of  Haliwer- 
folc,  forbidding  that  they  should  be  impleaded  for  their  free  ten- 
ements except  according  to  the  customs  and  legal  assizes  of  the 
kingdom,  and  granting  them  leave  to  use  these  assizes  in  the 
court  of  the  Bishop.^  The  Bishop  died  in  this  year,  and  the  see 
remained  vacant  until  1217;  before  king  John's  death,  however, 
the  men  of  Haliwerfolc  had  paid  into  the  royal  treasury  a  con- 
siderable sum  "  for  having  the  assizes  of  the  kingdom  of  England 
saving  the  liberties  of  the  Bishop  of  Durham."  ^ 

Here  then  is  another  step.  The  procedure  in  the  Bishop's 
court  is  changed,  against  his  will  but  with  great  resulting  ad- 
vantage to  his  liberties.  The  Bishop  had  taken  the  somewhat 
unreasonable  position  of  excluding  the  king's  writ  and  the  con- 
venient procedure  secured  by  it,*  without  offering  to  his  sub- 
jects any  corresponding  advantage.  If  a  man's  land  lay  in  the 
palatinate  he  was  forced  to  defend  or  recover  it  by  way  of  the 
duel ;  no  royal  writ  would  remove  the  plea  to  the  king's  court 
and  give  him  the  advantage  of  the  grand  assize.  This  is  the 
psychological   moment  in  the  development  which  we   are  fol- 

*  See  Rot.  Lit.  Claus.,  9  John,  i.  90,  a  grant  to  the  Bishop  of  all  the  lib- 
erties of  his  court  which  he  had  before  his  knights  complained  to  the  king. 
The  Bishop  no  doubt  had  paid  higher  than  his  subjects ;  hence  they  were 
forced  to  wait  until  a  time  of  vacancy  to  obtain  what  they  wanted. 

2  Rot.  Chart.,  10  John,  182  a. 

*  Pipe  Roll,  13  John,  in  Boldon  Book,  App.  xv. 

*  On  this  point  compare  the  words  of  Dr.  Stubbs  (i.  453) :  **  There  is 
however  no  doubt  that  the  same  principles  of  legal  procedure  were  used  in 
these  [courts  of  liberties  and  manors]  as  in  the  popular  courts  .  .  .  the  whole 
accumulation  of  ancient  custom  as  well  as  Norman  novltye."  In  regard  to 
Durham  however,  an  exception  to  this  rule  must  be  made. 


l68  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

lowing.  Will  the  Bishop,  like  the  other  great  feudatories  of 
England,  bow  to  the  all-pervasive  royal  power  and  allow  his 
jurisdiction  to  be  restricted  to  that  of  an  ordinary  seignorial 
court,  or  will  he  reorganize  his  judiciary  and  continue,  thus  for- 
tified, to  stand  out  for  his  liberties  ?  In  point  of  fact,  as  we  have 
seen,  his  subjects,  seeking  their  own  convenience  and  with  some 
notion  perhaps  of  reducing  his  power  (for  the  introduction  of 
the  new  procedure  seems  to  have  been  regarded  in  the  light  of 
an  infringement  on  the  Bishop's  privilege),  forced  on  him  the 
second  alternative.  The  step  here  taken  places  the  Bishop's 
court  on  a  level  higher  than  that  of  any  other  feudal  court  in 
England.  It  is  now  a  royal  court,  in  the  sense  that  it  offers  to 
those  who  resort  to  it  the  benefits  of  the  new  procedure  to  be 
found  in  the  king's  courts,  to  which,  however,  it  denies  them 
access. 

Turning  now  for  a  moment,  and  by  anticipation,  to  the  side  of 
criminal  jurisdiction,  we  find  that  by  1230  the  palatine  judiciary 
was  in  exclusive  possession  of  all  pleas  of  the  crown  and  other 
criminal  matters  arising  in  the  palatinate,  subject  only  to  a  formal 
petition  or  notification  to  the  king's  justices  when  they  came 
toward  the  borders  of  the  county.^  It  will  also  appear  that  the 
prior's  court  had  tried  and  failed  to  get  hold  of  at  least  part  of 
this  jurisdiction,  and  that  the  struggles  and  conflicts  occasioned 
by  this  effort  are  referred  to  a  period  at  least  as  early  as  the  ac- 
cession of  Henry  11.^  But  it  follows  that,  if  the  Bishop  and  the 
prior  were  striving  as  against  each  other  for  the  possession  of 
this  jurisdiction,  one  or  both  of  them,  and  not  the  king,  must 
have  held  it.  Again,  if  the  king  had  criminal  jurisdiction  in  the 
bishopric,  there  would  have  been  no  need  for  his  charter  of  in- 
demnity when  he  sent  his  justices  there  to  execute  the  Assize 
of  Clarendon. 

With  these  facts  in  mind  let  us  read  the  words  of  a  high  au- 
thority :  "  It  is  the  reconstruction  of  criminal  justice  in  Henry  IFs 
time,  the  new  learning  of  felonies,  the  introduction  of  the  novel 
and  royal  procedure  of  indictment,  that  reduce  the  immunist's 
powers  and  leave  him  with  nothing  better  than  an  unintelligible 

^  See  below,  p.  173.  2  See  below,  p.  172,  and  above,  p.  160. 


§  17]    CHANGE  FROM  A  FEUDAL  TO  A  ROYAL  COURT.    169 

list  of  obsolete  words."  ^  Possibly  Bishop  Pudsey  understood 
the  significance  of  the  changes  that  were  going  on  about  him  ; 
possibly  he  acted  only  on  the  impulse  of  an  ambitious  instinct. 
At  any  rate,  what  he  accomplished  toward  preserving  the  crim- 
inal jurisdiction  of  the  Durham  court,  the  lucky  blunder  of  the 
men  of  the  bishopric  later  did  for  the  civil  jurisdiction;  and  out 
of  these  two  circumstances  proceeds  the  subsequent  history  of 
the  palatine  judiciary.  To  the  legal  historian,  then.  Bishop 
Pudsey  and  king  John,  rather  than  Egfrith,  Alfred,  or  William 
the  Conqueror,  will  deserve  the  credit  or  the  reproach  of  being 
the  true  founders  of  the  palatinate  of  Durham. 

The  change  just  noticed  was  followed  by  a  very  rapid  develop- 
ment in  the  palatine  judiciary.  There  are  no  means  of  tracing 
the  stages  of  this  growth,  but  the  result  appears  in  a  document 
drawn  up  about  1229  to  confirm  and  define  the  relations  of  the 
Bishop's  and  the  prior's  courts.  We  have  already  heard  some- 
thing of  the  difficulties  that  grew  out  of  an  earlier  Bishop's  grant 
of  jurisdiction  to  the  prior.  These  increased  rather  than  abated 
during  the  succeeding  pontificates,  until  by  1229  they  became 
insufferable,  and  a  kind  of  modus  vivendi  was  arranged  between 
the  two  parties.2  The  record  of  this  agreement,  known  as  "  Le 
Convenit,"  has  survived  in  the  confirmations  of  later  Bishops. 
The  terms  of  the  compromise,  as  is  not  unnatural,  leave  by  far 
the  greater  advantage  on  the  side  of  the  Bishop ;  the  chronicler 
indeed  calls  it  "compositio  .  .  .  priori  et  conventui  praejudicialis 
in  multis,"  ^  and  from  his  point  of  view  as  a  monk  no  doubt  he 
was  right.  The  judiciary  of  the  palatinate  pictured  in  this  docu- 
ment consists  of  a  staff  of  justices  holding  general  eyres  when- 
ever the  king's  judges  came  into  Yorkshire,  and  sitting  in  the 
mean  time  as  a  kind  of  permanent  tribunal  at  Durham,  while  the 
old  meetings  of  the  county  court  continued.  We  read  that  "  all 
the  free  men  of  the  land  and  fee  of  the  prior,  and  the  reeve  and 

^  Maitland,  Domesday  Book  and  Beyond,  283 ;  and  cf.  Pollock  and  Mait- 
land,  i.  564. 

^  See  the  proem  to  Le  Convenit.  This  document  is  printed  in  various 
places  and  forms,  but  it  cannot  be  better  consulted  than  in  the  Feodarium 
Prioratus  Dunelmensis  (ed.  Greenwell,  Surtees  Soc),  pp.  212-219. 

3  Graystanes,  cap.  iii,  in  Scriptores  Tres,  y]. 


170  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

four  men  from  every  vill,  shall  come  to  the  sessions  of  the  jus- 
tices concerning  all  pleas,  and  as  often  as  these  sessions  are  held 
in  Yorkshire  the  Bishop  shall  cause  them  to  be  held  by  his  justices 
in  the  bishopric."  ^  A  separate  eyre  was  occasionally  held  in  the 
outlying  district  of  Norhamshire,  but  when  this  was  not  the  case 
the  men  of  those  parts  were  obliged  to  come  to  Durham.^  It 
very  soon,  however,  became  the  custom  to  appoint  an  indepen- 
dent staff  of  justices  for  Norhamshire  and  Islandshire,  who  sat 
regularly  at  Norham.^ 

It  is  by  inference  rather  than  by  direct  information  that  we 
arrive  at  the  existence  of  a  body  of  justices  distinct  from  the 
itinerant  justices  and  sitting  regularly  at  Durham.  In  the  first 
place,  we  know  that  such  a  body  sat  at  Westminster,  and  that 
the  eyre  was  held  only  once  in  every  seven  or  eight  years.  If, 
then,  we  find  it  mentioned  that  the  Bishop's  court  dealt  with  such 
judicial  business  as  would  not  naturally  come  before  the  county 
court,  we  may  surmise  that  in  the  judicial  arrangements  of  the 
palatinate  the  term  "  curia  episcopi "  corresponds  to  the  "  curia 
regis  "  of  the  kingdom.  Now,  we  read  that  all  amercements  and 
profits  arising  from  pleas  of  the  crown,  assizes,  and  all  other  pleas, 
which  are  determined  by  judgment,  fine,  or  agreement  in  the  court 
of  the  Bishop  {in  curia  episcopi)  with  respect  to  land  or  fee  of 
the  prior,  shall  be  divided,  without  difficulty  or  delay,  between  the 
Bishop  and  the  prior  ;  and  again,  that  the  prior  shall  have  his 
free  court  in  all  things  excepting  pleas  of  the  crown  and  pleas  of 
land  moved  by  the  Bishop's  writ.*    But  we  know  that  after  12 15 

^  "  Ad  placita  justiciariorum  de  omnibus  placitis  venient  omnes  liberi  ho„ 
mines,  de  terra  vel  de  feudo  Prioris,  et  de  qualibet  villa  praepositus  et  quatuor 
homines,  et  quociens  placita  justiciariorum  de  omnibus  placitis  tenebuntur 
in  Eboracenscire,  Episcopus  tociens  faciet  ea  teneri  per  ballivos  suos  in  Epis- 
copatu  suo  " :  Feodarium,  214-215.  There  can  be  no  doubt  that  "  ballivos  " 
refers  to  "  justiciariorum  "  and  should  be  understood  to  mean  the  Bishop's 
justices.  For  an  instance  of  "  ballivus  "  and  "  justiciarius  "  used  interchange- 
ably, see  Richard  Fs  "  Form  of  Proceeding  on  the  Judicial  Visitation,"  §  25, 
in  Stubbs,  Select  Charters,  263. 

*  Feodarium,  215. 

^  See  an  interesting  case  illustrating  this,  Rot.  Bury,  ann.  10,  m.  14,  curs. 
29.  The  justices  had  attempted  to  sit  at  Holy  Island,  and  were  rebuked  by 
the  Bishop. 

*  Feodarium,  214,  215. 


§  17]   CHANGE  FROM  A  FEUDAL  TO  A  ROYAL  COURT.    171 

the  sheriffs,  and  by  consequence  the  county  courts,  were 
forbidden  to  deal  with  pleas  of  the  crown,  and  that  there 
was  a  growing  tendency  to  increase  the  power  of  the  justices.^ 
If  pleas  of  the  crown  were  withdrawn  from  the  prior  and  re- 
served for  the  Bishop,  it  follows  that  the  Bishop  had  some 
machinery  other  than  that  of  the  county  court  for  dealing 
with  them ;  and  this  machinery  must  have  consisted  of  a  body 
of  justices. 

The  curia  episcopi  has  been  compared  to  the  curia  regis,  but 
the  analogy  must  not  be  pressed  so  far  as  to  suggest  any  develop- 
ment or  differentiation  in  the  former  answering  to  the  well-known 
growth  of  the  latter.  There  are  various  reasons  to  explain  this 
retarded  development,  but  these  may  be  reserved  for  later 
consideration.  In  the  mean  time  we  may  understand  the  curia 
episcopi  as  a  body  of  judicial  officers,  resident  at  Durham  for  the 
performance  of  other  duties,  such  as  those  of  chancellor,  steward, 
or  the  like,  and  incidentally  attending  to  such  judicial  business 
as  could  not  properly  or  conveniently  be  transacted  in  the  county 
court.^  This  arrangement  of  course  did  not  exclude  the  regu- 
lar meetings  of  the  county  court,  which  continued  as  usual  to 
assemble.  Presentations  were  here  made,^  and  the  full  body  of 
suitors  was  collected  to  meet  the  justices  in  eyre;  here  too  the 
bailiffs  of  the  prior  "  craved  their  court "  in  cases  which  they 
conceived  to  belong  to  the  prior's  jurisdiction.* 

The  great  step  has  now  been  taken.  The  court  of  the  Bishop  of 
Durham  has  ceased  to  be  a  popular  court  in  the  hands  of  a  great 
lord,  and  has  developed  into  a  little  judicial  system  organized 
on  the  royal  model.  We  have  left  behind  us  the  great  franchise 
and  are  face  to  face  with  the  county  palatine.     The  Bishop  and 

1  Articles  of  the  Barons,  §  14,  and  Magna  Carta,  §  24,  in  Stubbs,  Select 
Charters,  291,  300;  cf.  Stubbs,  i.  680-681. 

2  There  is  a  record  of  a  fine  levied  "  in  curia  episcopi  Dunelmensis  "  in 
1229  (see  Bracton's  Note  Book,  plac.  1223).  This  of  course  by  itself  proves 
nothing,  but  it  is  significant  in  this  connection.  For  fines  levied  in  various 
courts,  see  Pollock  and  Maitland,  ii.  96-97. 

3  De  placitis  coronae  .  .  .  quod  omnia  attachiamenta  fient  per  ballivum 
nostrum  .  .  .  et  per  visum  ballivi  Prioris  Dunelmensis  .  .  .  et  postea  prae- 
sentabuntur  in  curia  nostra":  Le  Convenit,  in  Feodarium,  214. 

*  Ibid.,  215. 


172  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

his  great  vassal,  the  prior,  are  now  engaged  in  a  struggle  very 
like  that  which  earlier  took  place  between  the  king  and  the 
Bishop.  The  Convenit,  as  we  have  seen,  did  not  satisfy  the 
prior;  but  it  was  the  outcome  of  a  long  inquiry  in  which  was 
collected  a  large  mass  of  evidence  that  has  survived.  The  prior 
disputed  the  Bishop's  right  to  the  exclusive  cognizance  of  pleas 
of  the  crown  and  cognate  matters,  and  brought  witnesses  who 
testified  that  they  had  seen  cases  of  rape,  manslaughter,  and  in- 
fractions of  the  peace  dealt  with  in  the  prior's  court.^  This  may 
have  been  true,  but,  in  view  of  the  evidence  adduced  by  the 
Bishop,  the  practice  can  only  be  regarded  as  an  encroachment. 
Witnesses  swore  that  felonies,  larcenies  and  appeals  of  larceny, 
and  the  whole  business  of  approvers  were  regularly  dealt  with 
in  the  Bishop's  court,^  which,  as  we  have  seen,  also  took  cogni- 
zance of  all  real  actions"  The  procedure  was  the  same  as  in 
the  royal  courts.^ 

We  must  now  turn  back  for  a  moment  and  take  up  another 
thread  in  the  story  of  the  development  which  we  are  tracing. 
The  royal  charters,  following  on  Fitz  Geoffrey's  case,  assured  to 
the  palatine  courts  what  was  virtually  an  exclusive  jurisdiction 
over  all  local  matters.  The  ultimate  supremacy  of  the  crown, 
however,  was  marked  by  the  customs  of  craving  court  and  peti- 
tioning for  pleas  of  the  crown.  That  is  to  say,  when  in  a  civil 
action  in  the  royal  courts  the  cognizance  of  the  plea  belonged  to 
the  Bishop,  either  because  one  of  the  parties  was  a  palatine  sub- 
ject or  because  the  land  in  question  lay  within  the  bishopric, 
the  Bishop's  bailiff  was  obUged  to  appear  before  the  king's  jus- 
tices and  ask  leave  to  transfer  the  plea  to  his  master's  court.^ 

1  All  the  evidence  has  been  printed  in  the  Feodarium  (pp.  218-301),  under 
the  general  titles,  "  Attestaciones  de  Placitis  de  Corona  "  and  Attestaciones 
Testium  Juratorum  .  .  .  de  Curia  Prioris."  For  the  present  point  see  pp. 
218-219. 

2  Ibid.,  231,  273,  281. 

^  "  De  assisis  et  omnibus  aliis  placitis,  quae  terminabuntur  per  judicium 
vel  finem  vel  concordiam,"  etc. :  Le  Convenit,  in  Ibid.,  214. 

*  Attestaciones,  in  Ibid.,  231,  269,  274,  276,  283,  285.  Antiquarians  may 
be  interested  in  the  fact  that  the  court  was  held  in  the  sheriff's  house  (Ibid., 
252-253). 

5  See  Maitland,  Domesday  Book  and  Beyond,  282 ;  Pollock  and  Mait- 


§  i8]       GROWTH  IN  THE    THIRTEENTH  CENTURY.         1/3 

This  practice  of  craving  court  was,  in  regard  to  Durham,  quietly 
dropped  in  the  course  of  the  thirteenth  century.  The  necessity 
of  petitioning  for  pleas  of  the  crown  lasted  until  the  end  of  the 
century.  This  consisted  in  a  practice  by  which  the  Bishop's 
officers  met  the  royal  justices  itinerant  at  the  frontier  of  the 
bishopric  and  asserted  the  Bishop's  immunity.  They  then  asked 
of  the  justices  a  copy  of  the  "  articles  of  the  eyre,"  and  sought 
leave  for  the  Bishop  to  issue  a  similar  commission  within  his 
province.  This  formal  mark  of  dependence  was  omitted  by 
Bishop  Bek,  and,  although  there  was  some  difficulty  at  the  time, 
the  matter  was  afterward  allowed  to  drop.^ 


§  1 8.    Subsequent  Growth  of  the  Palatine  Judiciary  in  the 
Thirteenth  Century. 

By  the  close  of  the  thirteenth  century  various  changes  had 
taken  place.  The  general  eyre  of  the  palatinate  was  held  first 
in  the  bishopric,  and  was  followed  by  an  eyre  in  outlying  dis- 
tricts.2  The  king  now  freely  admitted  the  Bishop's  right  to  hold 
pleas  by  his  own  writ  and  before  his  own  justices.^  Liberties, 
or  exempt  jurisdictions,  also  existed  within  the  palatinate  itself  ; 
there  are  recorded  the  names  of  no  less  than  twelve  persons 
holding  more  or  less  extensive  franchises  under  the  Bishop.* 

land,  i.  57o-S7i>  627.  The  whole  matter  is  well  illustrated  by  the  two  follow- 
ing cases,  which  seem  to  mark  the  latest  date  at  which  this  practice  was 
insisted  upon :  "  Alicia  Basset  petit  versus  Henricum  de  Puteaco  villam 
de  Icleflet.  Ballivi  episcopi  Dunelmensis  petunt  inde  curiam  episcopi  ad 
horam.  Habeant  earn'*  (Coram  Rege,  2  John,  roll  23,  m.  12,  Ebor.). 
"  Inkelle  de  Smedeton  optulit  se  iiii  die  versus  Johannem  Bee  de  placito 
duarum  carucatarum  et  dimidiae  in  Smedeton.  Et  Walterus  clericus  optulit 
se  versus  eundem  de  dimidia  carucata  terrae  in  eadem  villa.  Et  Johannes  de 
Kirkeby,  attornatus  ejus,  provenit  et  petiit  utrum  debent  placitare  versus  eos 
desicut  episcopus  Dunelmensis  petierat  curiam  suam  et  non  vult  placitare 
versus  eos.     Ideo  recedunt  sine  die"  (Ibid.). 

1  Northumberland  Assize  Rolls  (Surtees  Soc),  358,  359;  Plac.  de  Quo 
War.,  604. 

2  Ibid. 

8  Ibid.,  The  king's  acknowledgment  is  implied  in  his  return  of  the  tempo- 
ralities to  the  Bishop. 
4  Ibid. 


174  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

It  does  not  seem  probable  that  there  was  any  actual  perambu- 
lation of  the  county  for  the  purposes  of  the  Bishop's  general 
eyre ;  this  step  would  scarcely  have  been  necessary  within  a 
circumference  of  one  hundred  and  eighty  miles.  The  general 
eyre  was  also  giving  way  before  the  sessions  of  justices  sitting 
under  special  commissions.  We  hear  first  of  justices  of  assize 
in  1304;^  but  the  records  are  very  meagre,  and  special  com- 
missions were  no  doubt  issued  earlier.  Soon  after  this  commis- 
sions of  assize,  gaol-delivery,  and  oyer  and  terminer  become 
common  enough.^  It  is  worth  noting,  however,  that  the  gen- 
eral ^eyre  did  not  die  easily:  as  late  as  1349  we  hear  of  the 
people  of  the  palatinate  praying  the  Bishop  not  to  hold  a  general 
eyre  which  had  been  proclaimed.^  We  begin  to  hear  definitely 
also  of  the  existence  of  a  permanent  court  at  Durham.  The 
record  of  a  fine  levied  in  1304  reads  thus:  "  Haec  est  finalis 
Concordia  facta  in  curia  Domini  Dunelmensis  Episcopi  apud 
Dunelmum,"  etc.*  This  is  no  doubt  the  curia  episcopiy  which 
has  been  already  compared  to  the  curia  regis. 

But  the  curia  episcopi  was,  and  was  destined  to  remain,  in  a 
rudimentary  condition.  The  Bishop  within  the  palatinate  was 
easily  accessible,  and  once  outside  he  shed  all  but  the  dignity  of 
his  temporal  power,  leaving  his  steward  as  his  vicegerent.^ 
There  was  no  sovereign,  then,  in  constant  motion,  drawing  after 
him  the  great  judicial  officers  and  necessitating  the  establish- 
ment of  a  court  of  pleas  at  the  capital,  while  the  chancellor  fol- 
lowed his  person.  Had  Richard  Danesty's  lands  lain  within  the 
palatinate,  we  should  now  lack  the  classical  story  of  his  afflic- 
tions and  adventures.  The  area  of  the  Bishop's  jurisdiction  was 
small,  some  610,000  acres,  and  the  number  of  his  justiciables 
necessarily  limited  ;  the  press  of  business,  therefore,  could  not 
have  been  very  great.  One  other  circumstance  contributed  to 
this  arrested  development,  namely,  the  multiplication  of  offices 
in  the  persons  of  a  small  number  of  men :   thus  the  chancellor 

^  Rot.  Bury,  m.  18  dorse,  curs.  29. 

2  Registrum,  i.  299,  ii.  716,  1171,  1258. 

^  Rot.  i.  Hatfield,  ann.  4,  m.  i  dorse,  curs.  30. 

*  Rot.  Bury,  m.  18  dorse,  curs.  29.  , 

*  See  above,  p.  78  ff . 


§  i8]       GROWTH  IN  THE   THIRTEENTH  CENTURY.         1/5 

and  steward  would  also  be  justices,  and,  as  at  Westminster  a 
century  earlier,  so  now  at  Durham,  it  was  difficult  always  to  tell 
in  precisely  what  capacity  the  great  officers  of  government  were 
sitting. 

This  point,  since  it  throws  light  on  the  personnel  of  the  pala- 
tine judiciary,  may  be  allowed  to  detain  us  for  a  time.  In  1242 
Robert  Fitz  Mardrus,  Walter  de  Merton,  Richard  Ducket,  Geof- 
frey de  Leucknore,  and  John  de  Lumnes  were  justices  itinerant 
in  the  palatinate.^  Of  Robert  nothing  is  known,  but  Walter  de 
Merton  is  familiar  to  every  student  of  English  history.  In  1242 
he  held  a  living  in  Durham,  bestowed  on  him  by  the  Bishop,^  and 
was  temporal  chancellor  and  justice  itinerant  of  the  bishopric.^ 
In  1256  he  was  still  chancellor  and  justice,  and  a  member  of  the 
Bishop's  council  as  well.*  He  had  probably  retained  the  two 
former  offices  without  interruption,  for  in  1247  he  witnessed  an 
important  Durham  charter.^  In  the  mean  time,  however,  he  had 
entered  the  king's  service,  and  in  1249  appears  as  a  clerk  in  the 
royal  chancery.^  In  1256  the  king,  writing  to  the  Bishop  of 
Durham,  describes  Walter  as  "  clericus  noster  et  vester."^ 
Richard  Ducket,  justice  itinerant  of  the  palatinate  in  1242,  sat 
as  a  justice  at  Westminster  from  1232  until  1245.^  Geoffrey  de 
Leucknore,  in  1242  steward  of  the  palatinate  and  justice  itiner- 
ant, passed  over  later  into  the  king's  service,  and  in  1255  is  found 
as  justice  itinerant  in  Hunts,  Northampton,  and  Bucks.^  No 
information  is  forthcoming  with  regard  to  John  de  Lumnes. 

In  1 27 1  Roger  de  Seaton,  William  de  Northborough,  and 
Geoffirey    Russell    were   justices    itinerant  in  the   palatinate.^^ 

1  This  and  much  of  the  succeeding  information  is  derived  from  an  in- 
valuable series  of  exemplifications  on  the  chancery  roll  of  Bishop  Matthew, 
in  the  year  1598.     Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 

2  Dictionary  of  National  Biography,  xxxvii,  297-299. 

*  Rot.  Matthew,  as  above;  see  also  Bishop  Famham's  charter  to  the 
prior,  A.  D.  1242,  Feodarium,  186. 

^  Matthew  Paris,  Chronica  Majora,  vi.  326-327,  331,  334. 
^  Scriptores  Tres,  App.  No.  Ixxvii. 

*  Dictionary  of  National  Biography,  xxxvii,  297-299. 
'  Matthew  Paris,  Chronica  Majora,  vi.  327. 

s  Foss,  Judges,  ii.  312-313. 

®  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92;  Feodarium,  186;  Foss, 
Judges,  iii,  118. 
10  Ibid. 


176  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

Seaton  was  a  justice  at  Westminster  from  1268  until  1272;  in 
1274  he  became  chief  justice  of  common  pleas.^  William  de 
Northborough  became  one  of  the  king's  justices  itinerant  be- 
yond the  Trent  in  1275,^  and  Geoffrey  Russell  was  steward  of  the 
palatinate.^  In  1279  Robert  de  Neville,  Guiscard  de  Charron, 
Thomas  de  Herington,  and  Alan  de  Walkingham  were  justices 
itinerant  in  the  palatinate.*  Neville  belonged  to  an  important 
north-country  family,  but  nothing  more  definite  can  be  said  of 
him.  Guiscard  de  Charron  was  a  person  of  great  importance  in 
the  bishopric  and  was  probably  steward  at  this  time.^  Thomas 
de  Herington  was  undoubtedly  one  of  the  officers  of  the  palat- 
inate, for  we  find  him  witnessing  charters  along  with  Charron.^ 
Alan  de  Walkingham  does  not  appear  to  have  been  a  subject  of  the 
Bishop  or  to  have  had  any  local  connection  with  the  palatinate. 
In  this  year  (1279),  moreover,  he  was  one  of  the  king's  justices 
itinerant  in  Yorkshire."^ 

It  appears,  then,  that  the  body  of  palatine  justices  was  com- 
posed of  several  of  the  great  officers,  along  with  persons  of 
importance  in  the  palatinate  and  one  or  more  of  the  king's 
judges  either  actually  on  circuit  or  drawn  from  the  bench  at 
Westminster.  It  was  by  no  means  beneath  a  man's  dignity  to 
sit  on  the  bench  of  the  palatinate ;  Walter  de  Merton,  as  we  know, 
held  successively  the  great  seals  of  Durham  and  England.  There 
was  thus  a  pretty  regular  interchange  of  persons  between  the 
royal  and  palatine  judiciaries,  a  fact  which  may  well  be  kept  in 
mind,  for  it  will  help  us  to  understand  the  development  of  the 
palatine  judiciary  and  the  treatment  of  the  whole  institution  in 
the  royal  courts.     A  system  of  judicial  machinery  is  the  expres- 

1  Foss,  Judges,  iii.  152-153.  ^  Ibid.,  136. 

8  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92.  *  Ibid. 

*  In  1283  he  was  steward,  and  executor  (in  company  with  Robert  Avenel, 
the  temporal  chancellor)  of  Bishop  de  Lisle's  will ;  see  the  bull  of  Martin  IV, 
Scriptores  Tres,  App.  No.  Ixxi.  In  1293  he  had  great  liberties  in  the 
bishopric  (Plac.  de  Quo  War.,  604),  and  was  a  justice  (Feodarium,  200),  an 
office  which  he  seems  to  have  retained  throughout  Bek's  pontificate,  as  he 
reappears  in  1295  and  1304  (Registrum,  iii.  69,  iv.  355).  He  was  steward 
during  the  first  years  of  Bek's  pontificate,  but  probably  not  later ;  see  Colding- 
ham  Chartulary,  2 ;  Finchale  Chartulary,  59. 

•  Feodarium,  116.  '  Foss,  Judges,  iii.  37,  169. 


§  i8]       GROWTH  IN   THE    THIRTEENTH  CENTURY.         177 

sion  of  legal  ideas  scientifically  arranged.  We  have  found  the 
machinery  in  the  palatinate ;  and  we  begin  to  see,  now  that  we 
know  the  channel  through  which  legal  ideas  flowed  in,  that  the 
judiciary  was  something  more  than  a  bungling  copy  of  what  ex- 
isted in  the  kingdom.  When  we  come  to  deal  with  the  conflict 
of  the  royal  and  episcopal  jurisdictions  in  the  fifteenth  century, 
we  shall  be  able  to  explain  something  of  the  extreme  tenderness 
with  which  the  palatinate  was  treated,  by  remembering  that 
many  of  the  king's  justices  had  at  one  time  or  another  sat  under 
the  Bishop's  commission. 

From  the  beginning  of  the  reign  of  Edward  I  we  hear  of  chief 
justices  in  England,  at  first  of  king's  bench,  "  capitalis  justiciarius 
ad  placita  coram  rege  teijenda,"  and  later  of  common  pleas,  with 
the  chief  baron  of  the  exchequer  following  in  due  course  some- 
what later .^  As  early  as  1289  we  hear  of  a  **  major  justiciarius  '* 
in  the  palatinate.^  The  office  may  have  been  held  earlier  by 
Robert  de  Neville,  for  there  is  record  of  a  fine  levied  before  him 
"  et  sociis  suis  "  in  1278 ;  and  in  a  similar  record,  in  which  a  list 
of  all  the  justices  is  given,  his  name  occurs  first.^  In  the  early 
years  of  the  next  century  Bishop  Kellaw's  chief  justice  was  the 
well-known  Lambert  de  Trykingham,  who  at  the  same  time  was 
sitting  at  Westminster  under  the  king's  commission.*  In  1349 
occur  the  commissions  issued  by  Bishop  Hatfield  for  the  appoint- 
ment of  Thomas  Gray  to  be  chief  justice  in  the  room  of  Thomas 
de  Metham,  who  is  removed  from  office.  The  court  at  this  time 
consisted  of  five  justices,  but  we  learn  nothing  definite  about  the 
office  of  chief  justice.^  Here  then  is  still  another  example  of 
the  arrested  development  which  has  been  already  noticed.  This 
indeed  follows  logically  from  the  other :  if  the  courts  were  not 
divided  there  was  no  necessity  for  more  than  one  presiding  offi- 

1  Stubbs,  ii.  290-291 ;  Pollock  and  Maitland,  i.  183. 

2  The  office  was  held  by  William  de  Brompton,  who  figures  in  one  of  the 
most  amusing  of  the  chronicler's  many  delightful  stories.  See  Graystanes, 
cap.  xxii,  in  Scriptores  Tres,  74. 

*  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 

*  Registrum,  ii.  868,  885 ;  Foss,  Judges,  iii.  533-534- 

*»  Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30.  See  also  Rot.  ii.  Hat- 
field, ann.  36,  m.  14  dorse,  curs.  31 ;  and,  for  a  notice  of  the  chief  justice  in 
the  next  century,  Rot,  A.  Langley,  ann.  2,  m.  i,  curs.  34. 


178  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

cer,  who  might,  had  he  so  pleased,  have  called  himself  chief  jus- 
tice of  king's  bench  or  common  pleas,  or  chief  baron  of  the 
exchequer,  with  reference  to  the  nature  of  the  legal  business 
before  his  court  at  any  given  moment. 

§  19.    The  Commission  of  the  Peace  and  other  later  Developments. 

Between  the  thirteenth  and  the  sixteenth  centuries  certain 
changes  took  place  affecting  the  judicial  officers  of  the  palatinate. 
The  general  eyre,  as  we  have  seen,  gave  way  before  the  special 
commissions,^  and  these  in  turn  were  consolidated  in  so  far  as 
the  same  persons  sat  under  all  commissions.^  This  circumstance, 
however,  did  not  prevent  the  Bishop  from  issuing  special  com- 
missions as  occasion  might  require.  Thus  in  1350,  on  the  re- 
ceipt of  certain  articles  from  the  king  looking  toward  the  better 
administration  of  justice.  Bishop  Hatfield  issued  a  special  com- 
mission directing  that  his  justices  put  these  articles  into  execu- 
tion.2  The  same  Bishop  on  his  own  motion  issued  a  similar 
commission  in  1358,  to  inquire  concerning  all  oppressions,  ex- 
tortions, and  the  like  committed  by  his  stewards,  constables, 
sheriffs,  chief  forester,  and  other  officers.* 

In  the  fourteenth  century  also  the  beginnings  of  the  commis- 
sion of  the  peace  can  be  discerned.  Conservatores  pads  for  the 
county  of  Durham  were  appointed  by  the  crown  during  the 
vacancy  of  the  see  that  followed  Bishop  Bek's  death  in  1310.^ 
The  next  year  the  new  Bishop,  Richard  Kellaw,  created  Robert 
Hilton  custos  pads  for  the  county  on  account  of  the  great 
number  of  vagabonds  and  disturbers  of  the  peace  then  abroad. 
Hilton,  who  was  a  palatine  baron,^  was  enjoined  to  act  in  accord- 
ance with  the  customs  of  the  kingdom  and  of  the  royal  liberty  of 
Durham,  and  a  general  writ  prescribing  obedience  to  him  was 
issued.7    In  1345  Bishop  Hatfield  commissioned  nine  persons  to 

1  Above,  p.  174. 

2  There  seems  to  have  been  no  commission  of  nisi prius  in  the  palatinate; 
under  the  circumstances  indeed  it  would  scarcely  have  been  necessary. 

«  Rot.  i.  Hatfield,  ann.  5,  m.  2  dorse,  curs.  30. 

4  Ibid.,  ann.  13,  m.  i  dorse;  cf.  Rot.  A.  Langley,  ann.  2,  m.  4,  curs.  34. 

»  Calendar  of  Patent  Rolls,  1307-13 13,  p.  428. 

*  Above,  p.  64.  "^  Registrum,  i.  1 80-1 81. 


§  19]  LATER  DEVELOPMENTS.  1 79 

execute  the  provisions  of  the  statutes  of  Winchester,  Northamp- 
ton, and  Westminster  with  regard  to  the  conservation  of  the 
peace  in  Durham  and  Sadberg.  They  were  directed  to  punish 
all  offenders  against  the  statutes,  or  else  to  take  from  them 
security  for  good  behavior  and  for  the  maintenance  of  the  peace. 
The  same  persons  were  further  constituted  justices  of  oyer  and 
terminer,  and  were  associated  with  others,  "  formerly  custodians 
of  the  peace  and  justices  of  Richard  [de  Bury],  late  Bishop  of 
Durham."^  In  1369  the  king  appointed  custodes pacts  in  all  the 
counties  of  England,  with  the  special  functions  of  acting  as 
commissioners  of  array  and  correcting  the  deficiency  of  the 
judges  in  executing  the  statute  of  laborers.  A  writ  addressed 
to  the  Bishop  of  Durham  directed  him  to  appoint  similar  officers 
in  the  palatinate.^ 

In  1385  we  meet  with  what  seems  to  be  the  first  appointment 
of  justices  of  the  peace  under  that  title.  The  Bishop  commis- 
sioned five  persons  "for  the  preservation  of  our  peace  and  the 
execution  of  the  statutes  of  Winchester,  Northampton  and  West- 
minster in  all  our  fairs  and  markets  in  Durham  and  Sadberg." 
This  document  is  entered  on  the  chancery  roll  under  the  rubric, 
"commissio  justiciariorum  ad  pacem;  "  and  the  persons  named 
in  it  were  already  sitting  under  other  commissions.^  Similar 
commissions  are  frequent  enough  throughout  the  fifteenth  cen- 
tury, but  it  does  not  appear  that  a  peace  magistracy,  as  distinct 
from  the  ordinary  judicial  officers,  arose  in  the  bishopric  until  a 
later  time. 

During  this  period  the  Bishops  employed  an  attorney-general, 
whose  duty  was  to  defend  their  interests  in  all  courts,  as  well 
royal  as  palatine.*  All  the  judges  received  a  fixed  stipend  and 
an  additional  fee  for  every  session  held  by  them.  In  146 1  the 
salary  of  the  chief  justice  was  ten  pounds,  of  an  associate  justice 

1  Rot.  i.  Hatfield,  ann.  i,  m.  i  dorse,  curs.  30;  cf.  also  Rot.  A.  Langley, 
ann.  3,  m.  3  dorse,  and  ann.  4,  m.  7,  curs.  34. 

^  Foedera,  iii.  pt.  ii.  863. 

8  Rot.  Fordham,  ann.  3,  m.  4  dorse,  curs.  32. 

*  This  officer  appears  first  in  1307.  See  the  receipt  roll  of  1307,  Boldon 
Book,  App.  XXV ;  receiver-general's  account,  A.  d.  1461,  Ecclesiastical  Com- 
missioners, ministers'  accounts,  189816;  Rot.  i.  Fox,  ann.  i,  m.  3,  curs.  60. 


l8o  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

ten  marks ;  the  attorney-general  received  forty  shillings,  the  clerk 
of  the  chancery  and  the  custos  rotulorum  forty  shillings,  and  the 
clerk  of  the  justices  of  the  peace  and  the  coroners  sixty  shillings.^ 
The  chancellor  received,  and  still  receives,  a  stipend  of  forty 
marks,  with  an  allowance  of  fourteen  shillings  for  wax  and  a  fee 
for  sessions,  which  varied  from  three  shillings  and  seven  pence 
in  1461  to  one  hundred  pounds  in  1850.^ 

We  have  now  traced,  as  clearly  as  our  sources  of  information 
permit,  the  steps  by  which  a  system  of  judicial  machinery  mod- 
elled on  that  of  the  kingdom  was  developed  in  Durham  by  the 
close  of  the  thirteenth  century.  It  remains  to  follow  the  history 
of  that  machinery  down  to  1536,  when  it  was  virtually  destroyed. 
We  shall  deal  first  with  the  central  institutions,  considering  in 
order  the  council  and  chancery,  the  exchequer,  the  courts  chris- 
tian and  the  courts  of  admiralty,  marshalsea,  and  wards ;  we 
shall  then  examine  whatever  changes  occurred  in  the  staff  of 
judicial  officers,  and  shall  close  our  inquiry  with  a  few  words 
about  the  local  institutions  of  the  palatinate. 


§  20.    Judicial  Aspect  of  the  Bishop's  Council. 

The  political  and  ministerial  functions  of  the  Bishop's  council 
have  already  been  considered.  Attention  must  now  be  given  to 
its  judicial  aspect.  The  story  of  the  king's  council,  that  fertile 
mother  of  legal  institutions,  is  known ;  but  we  may  profitably 
recall  the  course  of  that  development  which,  having  produced 
the  central  courts  of  justice,  spared  the  council  itself,  clothed 
still  with  judicial  functions  and  ready  in  the  fulness  of  time  to 
undergo  another  subdivision  which  should  leave  one  of  its 
members,  the  chancellor,  in  possession  of  peculiar  and  inde- 
pendent jurisdiction.^  We  may  perhaps  hope  to  find  in  Durham 
an  equally  clear  growth  producing  a  similar  set  of  institutions, 

^  Receiver-general's  account,  A.  d.  1461,  Ecclesiastical  Commissioners, 
ministers'  accounts,  1898 16. 

2  Ibid.  See  also  the  case  of  Temple  v.  Ecclesiastical  Commissioners, 
p.  207,  below. 

«  Dicey,  Privy  Council,  1-24;  Stubbs,  i.  419-421 ;  Pollock  and  Maitland, 
i.  I76£f. ;  Baildon,  Select  Cases  in  Chancery  (Selden  Soc),  Introd. 


§20]  JUDICIAL  ASPECT  OF  THE   COUNCIL.  l8l 

but  here  we  shall  be  disappointed.  The  great  difference  in  the 
two  cases  lay  in  the  multiplication  of  palatine  offices  in  single 
persons.  The  results  of  this  practice  have  been  noticed  in 
another  connection;  it  acted  as  an  obstacle  to  the  growth  of 
institutions  by  eliminating  the  stimulus  of  competition.  This 
principle  is  well  illustrated  by  the  position  of  the  Bishop  himself, 
who,  as  lord  and  ordinary,  combined  in  his  own  person  the  high- 
est temporal  and  spiritual  power  of  the  province.  Further,  the 
great  officers,  as  we  have  seen,  commonly  sat  as  justices  under 
the  ordinary  commissions.  Under  these  conditions  the  chances 
of  any  serious  rivalry  between  competing  jurisdictions  were  not 
great.  Our  task,  then,  is  not  to  trace  the  history  of  several  dis- 
tinct courts ;  we  must  seek  rather  for  somewhat  rudimentary 
analogues  of  these  courts  imbedded  in  a  single  body  of  varying 
aspects. 

During  the  centuries  that  lie  between  the  Norman  Conquest 
and  the  death  of  Edward  I  we  shall  scarcely  expect  to  find  the 
palatine  council  concerning  itself  much  with  judicial  matters,  for 
it  was  not  until  the  latter  date  that  even  the  king's  council  took 
its  place  in  the  hierarchy  of  royal  courts.^  In  the  course  of 
the  elaborate  litigation  between  the  abbot  of  S.  Albans  and  the 
Bishop  of  Durham  in  the  first  half  of  the  thirteenth  century,  the 
council  was  actively  interested  in  the  various  moves  of  the  game, 
although  not  itself  a  tribunal.^  Walter  de  Merton,  chancellor 
and  councillor,  was  also  one  of  the  justices  before  whom  the 
litigation  was  conducted  so  long  as  it  remained  in  the  palatine 
courts.  A  little  later  we  learn  that  two  "  famosi  advocati  "  were 
members  of  Bishop  Bek's  council ;  ^  and  a  palatine  account  roll 
for  the  year  1307  mentions  the  expenses  of  the  Bishop's  council 
and  of  certain  **  narratores "  during  the  Hilary  and  Easter 
terms.* 

In  the  fourteenth  century  and  later  the  council  in  its  judicial 

^  Memoranda  de  Parliamento  (ed.  Maitland),  Introd.  Ixxxiv-lxxxv. 

*  Matthew  Paris,  Chronica  Majora,  vL  326-327,  331,  340. 

*  Walter  of  Hemingburgh,  ii.  214. 

*  "  In  expensis  Domini  Stephani  et  aliorum  de  consilio  et  narratorum  per 
iv.  dies  post  festum  Sancti  Hillarii  .  .  .  13/.  i8j.  io>^</.":  receipt  roll  of 
1307,  Boldon  Book,  App.  xxv-xxxvii,  especially  xxxv. 


l82  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

aspect  had  two  functions  :  as  a  court  of  original  instance  it 
supplemented  the  ordinary  courts  of  the  palatinate  by  giving 
remedies  beyond  their  competence;  and  in  the  last  resort  it 
corrected  their  mistakes.  In  both  cases  it  took  its  sanction 
from  the  full  power  of  the  Bishop  as  lord  royal.  Thus,  since 
the  Bishop  in  the  palatinate  is  in  loco  regis}  it  is  clearly  impos- 
sible to  proceed  against  him  in  his  own  court ;  ^  the  only  remedy 
against  him  will  be  by  petition  to  the  Bishop  in  council.^  In 
such  cases  the  council  will  not  do  justice  itself,  but  it  will  pro- 
vide a  fitting  remedy  by  means  of  a  special  commission  to  the 
justices.  Thus  in  13 14  Ralph  le  Maceon  and  Emma  his  wife 
petition  the  Bishop  for  a  certain  piece  of  land  formerly  belong- 
ing to  Emma's  father ;  the  Bishop,  they  complain,  now  holds  the 
land  although  Emma  is  her  father's  heir,  and  they  ask  that  jus- 
tice be  done  them.  The  Bishop  handed  over  this  petition  to  his 
chancellor,  who,  together  with  several  of  the  justices,  took  an 
inquest,  on  the  finding  of  which  the  land  was  returned  to  the 
petitioners.* 

This  case  is  interesting  on  account  of  its  early  date  and  the  light 
which  it  casts  on  the  functions  of  the  chancellor  in  these  matters ; 
but  the  point  in  hand  is  more  clearly  developed  in  a  case  from 

1  Abbrev.  Plac,  257  a;  and  see  Year  Book,  14  Edw.  Ill,  Mich.  142-143. 

2  Bracton,  fol.  382  b,  vi.  18 ;  Pollock  and  Maitland,  i.  500-501.  It  is  just 
possible,  however,  that  early  in  the  thirteenth  century  an  action  would  lie 
against  the  Bishop  in  his  own  court.  Thus  in  1236  an  action  was  brought 
against  Ranulf  earl  of  Chester,  looking  to  the  recovery  of  certain  lands  in  the 
county  palatine  of  Chester.  The  earl,  by  reason  of  his  liberties,  refused  to 
plead,  but  invited  the  parties  to  come  into  the  palatinate,  where  he  promised  to 
do  them  full  justice,  but  whether  through  his  council  or  in  his  ordinary  courts 
does  not  appear.  The  bearing  of  the  case,  however,  lies  in  the  judgment  of 
the  royal  court,  which  runs  thus :  "  Et  quia  ita  usitatum  est  hucusque  quod 
pares  sui  et  alii  qui  libertates  habent  consimiles  sicut  Episcopus  Dunholmensis 
et  comes  marescallus  respondent  de  terris  et  tenementis  infra  libertates  suas 
per  summoniciones  factas  ad  terras  suas  et  tenementa  extra  libertates  suas, 
ideo  consideratum  est  quod  respondeat"  (Bracton's  Note  Book,  plac.  1213). 
The  conditions  of  Durham  and  Chester  are  here  represented  as  identical, 
and  the  earl  palatine  of  the  latter  asserts  that  remedy  against  himself  is  to  be 
had  through  his  own  courts. 

8  Pollock  and  Maitland,  i.  1 76. 
*  Registrum,  i.  511-513. 


§  2o]  JUDICIAL  ASPECT  OF  THE   COUNCIL.  183 

the  year  1338,  too  long  to  be  cited  here.^  The  whole  procedure 
is  well  illustrated  in  a  case  in  1372.  Certain  lands  granted  to 
Adam  Galleway,  a  minor,  had  been  occupied  by  his  father,  as 
nearest  friend  of  the  donee.  The  father  had  been  put  to  forfeit- 
ure, and  the  land  was  seized  and  occupied  by  one  of  the  Bishop's 
officers,  who  subsequently  conveyed  it  to  a  third  party.  Adam's 
brother  thereupon  petitioned  the  council  for  the  return  of  the 
land,  on  the  ground  that  his  father  had  had  no  estate  in  it.  The 
council  directed  an  inquest  to  be  taken,  and  since  the  finding  of 
the  jury  was  favorable  to  the  petitioner  (as  was  usual  in  these 
cases),  the  land  was  returned  to  his  brother  by  letters  patent  of 
the  Bishop.2 

Many  kinds  of  cases  came  up  in  this  fashion.  Thus  in  1362 
a  chantry  priest,  whose  stipend  was  chargeable  on  the  issues  of  a 
manor  lately  come  into  the  Bishop's  hand  by  reason  of  the  death 
of  the  lord,  complained  that  the  escheator  denied  him  payment 
of  his  due.^  In  1361  the  parson  of  Boldon  asked  for  remedy 
against  the  Bishop's  villeins,  who  had  ejected  him  from  a  right 
of  common  and  pasture.*  In  1381  two  persons  represented  that, 
although  they  and  their  ancestors  had  been  free  and  of  free 
estate,  their  goods  and  chattels  had  been  seized  on  the  ground 
that  they  were  the  Bishop's  villeins.^  This  aspect  of  the  council 
in  its  judicial  capacity  presents  no  difficulties ;  but  before  leav- 
ing it  we  may  well  notice — although  the  point  will  occur  again — 
that  during  the  fifteenth  century  the  council,  employing  exactly 

1  Registrum,  iii.  260-268;  for  a  similar  case  see  Ibid.,  268-272. 

2  All  the  original  instruments  in  this  case  are  extant.  They  consist  of  the 
commission  to  the  justices  for  the  inquest,  the  writ  to  the  sheriff  to  summon 
a  panel,  the  justice's  notice  of  the  time  and  place  of  the  inquest  directed  to 
the  sheriff,  the  panel,  and  the  return  of  the  jury  with  the  original  seals.  See 
Cursitor  154,  Nos.  67-72;  also  the  enrolment  of  letters  patent  embodying 
similar  cases,  Rot.  Fordham,  ann.  3,  m.  6,  curs.  32;  Rot.  DD.  Langley, 
ann.  24,  m.  2,  curs.  37. 

3  Cursitor  154,  Nos.  1-5. 

*  Ibid.,  Nos.  20-25.  The  return  of  the  inquest  was  that  the  villeins  had 
indeed  made  the  ejectment  "  per  imparcationem  averiorum  suorum,"  which 
was  of  course  the  act  of  the  Bishop. 

^  Ibid.,  Nos.  52-56.  The  words  here  are  interesting  :  "  Inquisitio  capta 
apud  Dunelmum  .  .  .  coram  ,  .  .  justiciariis  domini  episcopi  assignatis 
ex  consideratione  totius  consilii  domini  episcopi." 


1 84  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

the  method  we  have  just  been  considering,  dealt  with  cases  that 
would  have  come  before  the  court  of  admiralty,  had  such  a  tribu- 
nal then  existed  in  the  palatinate. 

We  have  seen  the  council  providing  a  remedy  in  the  regular 
courts.  It  might  also  upon  occasion  act  as  a  real  tribunal, 
and  this  is  its  second  or  corrective  function.  A  great  writer, 
describing  the  palatine  judiciary  as  he  knew  it  in  the  seventeenth 
century,  said :  "  If  an  erroneous  judgment  be  given  either  in 
the  chancery  upon  a  judgment  there  according  to  the  Common 
Law,  or  before  the  justices  of  the  Bishop,  a  writ  of  error  shall 
be  brought  before  the  Bishop  himself."  ^  That  this  was  true  in 
the  fourteenth  century  appears  from  a  case  that  came  up  in  1341. 
The  question  of  possession  of  land  in  the  counties  of  York  and 
Lincoln  was  raised  by  the  tenant's  pleadings.  This  point  was 
beyond  the  competence  of  the  Bishop's  court,  and  the  plea 
was  dismissed.  The  demandant  then  brought  the  case  before 
the  Bishop  himself  by  a  writ  of  error,  when  the  judgment  was 
reversed  and  the  case  sent  back  to  the  justices.^ 

There  can  be  no  doubt  that  this  and  similar  cases  came  before 
the  council.  In  the  first  place,  the  composition  of  it  at  this  time 
is  significant:  in  1345  it  consisted  of  the  chancellor,  the  stew- 
ard, the  sheriff,  one  of  the  coroners,  a  clerk,  two  members  of 
important  families  of  the  bishopric,  and  five  justices.^  In  the 
second  place,  we  know  that  the  council  was  already  acting  as  a 
court  of  justice;  for  in  1344  the  king  directed  the  Bishop  to 
arrest  all  persons  found  within  his  liberty  in  possession  of  papal 
bulls,  instruments,  reservations,  and  the  like,  to  cause  them 
to  be  brought  before  himself  and  his  council,  and  there  to  do 
justice  upon  them.* 

^  Coke,  Fourth  Institute,  cap.  xxxviii. 

2  Year  Book  14  Edw.  Ill,  Mich.  142-144;  c£.  also  Year  Book  15  Edw.  Ill, 
Hil.  364-366. 

•  Registrum,  iv.  349. 

*  Foedera,  iii.  pt.  i.  2-3.  This  is  the  king's  proclamation  against  pro- 
visors;  the  words  are:  "  Nos  .  .  .  vobis  mandamus  .  .  .  quod,  factis  ite- 
ratis  proclamatione  et  inhibitione  .  .  .  quod  nullus  .  .  .  hujusmodi  litteras, 
bullas  [etc.]  .  .  .  infra  idem  regnum  nostrum  deferat  .  .  .  eos  una  cum 
litteris,  bullis,  processibus,  reservationibus,  et  instrumentis,  in  libertate  prae- 
dicta  secum  vel  ahbi  inventis  coram  vobis  et  consilio  vestro,  statim  cum  eos 


§  20]  JUDICIAL  ASPECT  OF  THE   COUNCIL,  185 

The  council  also  vindicated  the  authority  of  the  lower  courts 
by  punishing  persons  who  were  guilty  of  contempt  of  those 
courts  in  disregarding  their  mandates  or  otherwise  resisting 
them.  Thus  in  1392  we  find  Robert  Conyers  and  several  others 
entering  into  recognizance  with  the  Bishop  to  produce  William 
de  Elmedene  in  the  chancery  at  Durham  on  a  certain  day,  "  there 
to  hear  the  judgment  of  the  council  in  regard  to  a  certain  con- 
tempt of  the  lord  Bishop  committed  in  his  court  at  Durham 
before  his  justices  there."  ^  William's  offence  had  been  his 
refusal  to  find  security  for  keeping  the  peace  toward  Hugh  de 
Westwyk.  This  method  could  not  have  been  altogether  effec- 
tive, for  two  years  later  it  is  recorded  that  John  de  Elmedene  is 
to  be  produced  in  chancery  under  the  same  circumstances,  "from 
session  to  session  until  he  shall  have  come  to  terms  with  the  lord 
Bishop  about  a  certain  fine  for  contempt."  ^  These  offences  were 
no  doubt  the  more  readily  drawn  under  the  jurisdiction  of  the  coun- 
cil from  the  fact  that  it  was  customary  in  Durham  for  those  who 
were  bound  over  to  keep  the  peace  to  enter  into  a  recognizance 
of  debt  with  the  Bishop,  which  by  its  terms  could  not  be  put  into 
execution  so  long  as  the  debtor  observed  the  attached  conditions.^ 

The  council  occasionally  passed  judgment  as  a  board  of  arbi- 
tration between  the  Bishop  and  those  who  had  claims  against 
him.  Thus  in  1400  Thomas  de  Elmedene  came  into  chancery 
and  made  recognizance  with  the  Bishop  in  the  sum  of  one  hun- 
dred marks,  under  condition  that  he  should  abide  by  the  ordi- 
nance and  judgment  of  the  Bishop  and  his  council  in  respect  to 
all  matters  in  dispute  between  himself  and  the  Bishop.* 

capi  et  arestari  contigeret,  salvo  et  secure  de  tempore  in  tempus  duci  faciatis 
justiciam  super  hoc  recepturos."  The  form  sent  to  the  sheriffs  of  England 
reads  "  consilio  nostro  "  not  "  vestro."  Similar  writings  were  sent  to  Chester 
and  the  Cinque  Ports. 

1  Rot.  Skirlaw,  ann.  4,  m.  7,  curs.  33 ;  cf.  Ibid.,  ann.  5,  m.  10  dorse. 

^  Ibid.,  ann.  6,  m.  11. 

3  Cf.  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  32 ;  and  Rot.  Skirlaw,  ann. 
14,  m.  26.  The  writ  of  subpoena  does  not  seem  to  have  been  used  as  early 
as  this  in  Durham.  Indeed,  recognizances  for  all  purposes  lasted  here  much 
longer  than  in  the  kingdom,  and  even  in  contract  gave  way  but  slowly  to  the 
more  convenient  statute. 

*  Rot.  Skirlaw,  ann.  15,  m.  28,  curs.  33 ;  cf.  Rot.  Fordham,  ann.  6,  m.  9, 
curs.  32. 


1 86  THE  JUDICIARY  OF  THE  PALATINATE,      [Ch.  V. 

§  21.    The  Chancery. 

We  have  now  reached  a  point  at  which  the  chancery  as  a 
tribunal  begins  to  take  its  place  in  the  palatine  judiciary.  Let 
us  turn  back  a  little  and  trace,  if  we  can,  the  story  of  this  devel- 
opment. We  hear  nothing  very  definite  of  the  chancery  of 
Durham  until  the  close  of  the  thirteenth  century ;  then  we  read 
in  the  quo  warranto  proceedings  of  1293  that  the  Bishop  of 
Durham  has  his  chancery  and  holds  pleas  by  his  own  writs.^ 
As  a  secretarial  department  the  chancery  had  perhaps  existed 
from  a  considerably  earlier  period;  but  we  are  not  concerned 
here  with  a  bureau  occupied  in  the  production  of  diplomata. 
What,  then,  did  that  Northumberland  jury  mean  when  it  in- 
formed Hugh  de  Cressingham  and  his  brother  justices  that  the 
Bishop  of  Durham  had  his  chancery?  Probably  it  meant  no 
more  than  a  bureau,  as  we  have  suggested,  for  it  >yas  preoccu- 
pied for  the  moment  with  the  Bishop's  writs.  Had  it  been 
asked,  however,  to  define  the  Bishop's  chancery,  it  would  no 
doubt  have  told  a  different  story.  Many  of  the  jurors,  it  is  likely, 
were  holding  land  in  Durham,  and  all  knew  that  a  man  might  go 
into  chancery  and  make  recognizance  to  fulfil  some  engagement. 
Judicial  proceedings  in  chancery,  moreover,  could  not  have  been 
strange  to  them,  for  the  council  in  its  judicial  aspect  sat  in  the 
chancery  and  the  chancellor  was  an  important  member  of  the 
council.  We  may  well  doubt  whether,  at  this  period  and  for 
judicial  purposes,  the  chancery  and  the  council  were  distinguish- 
able ;  indeed,  we  could  scarcely  expect  to  find  them  so.^ 

During  the  fourteenth  century,  however,  the  jurisdiction  of 
chancery  begins  to  take  form :  the  bureau  is  becoming  a  tribu- 
nal. Already  the  jurisdiction  of  the  council  in  cases  of  remedy 
against  the  Bishop  is  coming  to  be  regarded  as  a  matter  for 
the  chancellor.  In  the  case  of  Ralph  le  Maceon  (a.  d.  13 14), 
which  has  been  already  considered,  we  read  that  the  Bishop, 

1  Plac.  de  Quo  War.,  604. 

2  Cf.  Memoranda  de  Parliamento,  Introd.  xlvii.  As  will  be  seen,  the 
admiralty  jurisdiction  of  the  Bishop  did  not  cut  loose  from  chancery  and 
the  council  until  the  sixteenth  century,  a  feat  never  properly  achieved  by  the 
court  of  exchequer,  which  remained  an  aspect  of  chancery  until  1836. 


§21]  THE  CHANCERY.  187 

wishing  to  know  the  truth  of  the  matter  and  the  rights  of  the 
petitioners,  delivered  the  petition  to  William  de  Denum,  his 
chancellor,  with  directions  to  take  an  inquest,  etc.^  There  is 
also  the  fragment  of  a  plea  illustrating  the  ordinary  jurisdiction 
of  chancery  in  1360.  The  rubric,  which  alone  is  important  for 
the  present  purpose,  runs  thus :  "  Placita  in  cancellaria  domini 
Thomae  episcopi  Dunelmensis  coram  Johanne  de  Kyngestone 
cancellario  ejusdem  domini  episcopi."  The  plea  concerns  one  of 
the  Bishop's  tenants-in-chief,  who  had  alienated  his  land  without 
proper  licence.^ 

The  beginning  of  the  chancellor's  regular  jurisdiction  over 
cases  brought  up  by  petition  to  the  council  is  well  illustrated  by 
the  prior  of  Durham's  case  in  1376.  During  the  vacancy  of  the 
priorate  the  Bishop  had  filled  a  living  which  was  in  the  gift  ol 
the  prior  and  convent.  But  the  monks  laid  claim  to  immunity 
from  the  Bishop's  privilege  in  this  matter,  granted  to  them  by 
his  letters  patent,  and  the  new  prior  set  forth  these  facts  in  a 
petition  to  the  Bishop  and  his  council  in  chancery,  asking  for 
remedy  against  the  grievance.^  The  case  was  heard  by  the 
chancellor ;  the  prior  exhibited  the  Bishop's  letters  patent ;  and 
the  court,  in  perplexity,  adjourned  the  hearing.*  On  the  day 
appointed  for  giving  judgment,  proclamation  was  made  that  any 
one  having  information  that  would  tend  either  to  support  or  to 
defeat  the  right  of  the  Bishop  and  his  council  in  this  matter 
should  come  forward  and  declare  it.  No  one  came,  and  judg- 
ment was  accordingly  awarded  to  the  prior.^     This  affair  pro- 

1  Registrum,  i.  511,  and  cf.  Ibid.,  257. 

2  Cursitor  154,  No.  83. 

8  "  Prior  Dunelmensis  exhibuit  domino  episcopo  et  concilio  suo  in  cancel- 
laria sua  Dunelmi  quandam  petitionem."  The  petition  is  in  French.  The 
plea  is  rubricated :  "  Placita  apud  Duhelmum  in  cancellaria  domini  episcopi 
Dunelmensis  .  .  .  coram  Ricardo  de  Castro  Bernardi  cancellario." 

*  "  Et  quia  nondum  avisatur  de  judicio  inde  reddendo,"  etc. 

^  **  Et  proclamatum  fuit  in  curia  quod  si  quis  dictum  dominum  episcopum 
aut  consilium  suum  de  aliquo  jure  ipsum  dominum  episcopum  in  hac  parte 
concernente  aut  de  contrario  aliquorum  praedicta  petitione  contentorum 
sciverit  .  .  .  veniat.  Et  nuUus  venit "  (Rot.  ii.  Hatfield,  ann.  31,  m.  8,  curs. 
30.)  In  a  similar  case  in  1365  there  is  no  direct  mention  of  the  chancellor's 
participation.    Two  persons  of  a  certain  vill  are  directed  to  show  cause  in 


l88  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

duces  unmistakably  the  impression  of  a  beginning  of  the 
chancellor's  jurisdiction.  The  court  is  tentative,  perplexed,  it 
has  not  yet  measured  its  own  scope.  In  later  cases  we  shall 
find  growth.  In  1393  a  case  of  idiocy  was  tried  by  the  chancellor 
and  three  of  the  justices.  The  alleged  idiot  was  examined,  her 
insanity  declared,  and  judgment  given  with  respect  to  the  dis- 
posal of  her  lands,  which  of  course  passed  into  the  Bishop's 
hands.i  In  1424  John  Bynchestre  came  into  the  chancery  in 
his  own  person,  and  said  that  Donald  de  Heselrig  and  his 
wife  had  granted  him  certain  lands,  which  he  held  until  it 
appeared  by  an  inquest  that  the  late  prior  of  Durham,  of  whom 
Donald  obtained  the  lands,  had  acquired  them  without  proper 
licence,  whereupon  they  were  seized  by  the  Bishop.  For  this 
John  sought  remedy  against  the  Bishop.^ 

In  the  course  of  the  fifteenth  century  we  meet  with  cases  which 
should  be  referred,  we  may  suspect,  to  the  equitable  jurisdiction 
of  the  chancellor.  Thus  in  1478  Roger  Yonge  came  into  the 
chancery  and  confessed  that  he  had  made  a  certain  feoffment 
without  right  or  authority.  This  document  is  entered  on  the 
chancery  roll  in  English.^  In  1500  we  hear  of  a  controversia  be- 
fore the  chancellor,  in  which  the  plaintiff  is  a  Newcastle  man  and 
therefore  outside  the  ordinary  jurisdiction  of  the  palatine  courts. 
This  matter,  moreover,  was  determined  not  by  a  judgment  but 
by  a  decree  of  the  chancellor.*  In  151 3  the  sheriff  of  Durham 
was  directed  to  seize  all  the  lands  and  goods  of  Scotsmen  dwell- 

chancery  why  the  Bishop's  under-forester  should  not  make  a  certain  levy  on 
the  tenants  of  that  vill  (Cursitor  162,  Nos.  34-39). 

1  "  Margareta  de  Alaynssheles  venit  hie  in  cancellaria  Dunelmi  ...  die 
Septembris  anno  pontificatus  domini  Waited  episcopi  Dunelmensis  quinto 
coram  Roberto  de  Wy cliff e  tunc  cancellario  dicti  domini  episcopi  ibidem  et 
Radulfo  de  Eure  et  Willelmo  Gaston  tunc  justiciariis  dicti  domini  episcopi ; 
et  praedicti  cancellarius  et  justiciarii  examinaverunt  praedictam  Margaretam 
et  invenerunt  ipsam  Margaretam  omnino  veram  idiotam  et  nuUam  habentem 
discretionem  per  quod  se  possit  gubernare  ;  per  quod  consideratum  fuit  quod 
omnia  terrae  et  tenementa  quae  sunt  praedictae  Margaretae  infra  regiam 
libertatem  Dunelmensem  saisicntur  in  manum  domini  episcopi "  :  Rot.  Skir- 
law,  ann.  5,  m,  9,  curs.  33. 

2  Rot.  E.  Langley,  ann.  18,  m.  11,  curs.  38. 

*  Rot.  ii.  Dudley,  m.  8  dorse,  curs.  1$. 

*  Rot.  iii.  Fox,  ann.  6,  m.  6  dorse,  curs.  62. 


§21]  THE   CHANCERY.  1 89 

ing  in  the  bishopric.  The  ejected  Scots  were  furnished  with  a 
list  of  property  thus  confiscated,  and  all  disputes  and  difficult 
cases  arising  out  of  the  seizure  were  referred  to  the  chancellor 
and  treasurer.^ 

This  evidence  will  not  of  course  establish  the  existence  of  an 
English,  or  equity,  side  in  the  chancery  of  Durham  in  the  fifteenth 
and  early  sixteenth  centuries ;  but  we  know  that  early  in  the  six- 
teenth century  the  equitable  jurisdiction  of  the  Durham  chan- 
cery was  no  innovation.  Spearman,  the  under-sheriff  of  the 
county,  himself  an  antiquary  and  a  careful  student  of  the  pala- 
tine records  at  a  time  when  many  more  of  them  existed  than 
have  survived,  gives  some  valuable  information  on  this  point. 
He  says  that  until  the  beginning  of  the  sixteenth  century  the 
Durham  chancery  was  extremely  irregular,  and  that  its  proceed- 
ings were  recorded  only  in  a  desultory  fashion  and  on  paper. 
He  also  states  that  Cardinal  Wolsey,  when  he  became  Bishop  of 
Durham  in  1523,  reorganized  the  chancery  upon  a  rational  basis.^ 
There  is  good  reason  for  accepting  this  explanation.^  The  whole 
business  of  the  Durham  chancery  was  recorded  upon  one  roll,  or 
at  the  most  upon  two  or  three.  Practically  all  the  files  have  dis- 
appeared, and  accordingly  we  have  no  original  bills  or  petitions. 
On  the  other  hand,  the  chancery  of  Durham  survived  the  drastic 
reforms  of  Henry  VIII,  and  toward  the  close  of  the  century  ap- 
pears, as  we  shall  see  later,  to  be  properly  organized  and  running 
smoothly.  Finally,  it  should  be  remembered  that  the  judiciary 
of  the  palatinate  followed  at  a  moderate  distance  the  develop- 
ment of  that  of  the  kingdom,  and  that  statutes  made  at  West- 
minster, unless  with  special  provision  to  the  contrary,  extended 
to  the  palatinate.  To  this  rule  the  statutes  regulating  chancery, 
for  example  that  of  17  Ric.  II,  cap.  6,  would  be  no  exception. 

Looking  back  over  the  ground  we  have  covered,  we  shall  con- 

1  Rot.  i.  Ruthall,  ann.  5,  m.  12,  curs.  70. 

^  Spearman,  Inquiry,  55-56.  Spearman  was  under-sheriff  of  the  county 
from  1665  until  1697. 

3  It  should  be  remembered  that  such  records  as  existed  had  been  largely 
carried  off  or  destroyed  in  the  time  of  Wolsey.  "  The  chancery  of  Dur- 
ham," wrote  Bishop  Tunstall,  "  where  al  the  records  lay,  was  spoyled  as  wel 
of  records  as  off  all  odyr  stuff  that  was  ther  "  :  Boldon  Book,  Pref.  vi. 


190  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

elude  that  the  Bishop's  council  in  its  judicial  aspect  supplied  the 
defects  of  the  lower  courts  by  offering  to  the  Bishop's  subjects  a 
means  by  which  they  might  obtain  legal  remedy  against  their 
lord.  It  also  corrected  the  judgments  of  the  lower  courts  when 
they  had  made  an  error  in  law.  Toward  the  middle  of  the  four- 
teenth century,  cognizance  of  the  first  of  these  two  categories  of 
causes,  which  by  this  time  was  the  chief  business  of  the  Latin 
side  of  the  royal  chancery,^  passed  from  the  Bishop's  council 
to  his  chancellor.  The  chancery  then  develops  independent 
jurisdiction,  and  by  the  middle  of  the  fifteenth  century  begins  to 
show  traces  of  an  equitable  jurisdiction,  which,  however,  owing 
to  special  reasons  does  not  come  clearly  into  view  until  late  in 
the  sixteenth  century. 

§  22.    The  Court  of  Exchequer. 

The  palatine  court  of  exchequer  was  never  differentiated  from 
the  Latin  side  of  the  chancery.  We  are  told  that  the  "  court  of 
chancery  of  this  county  Palatine  was  anciently,  and  still  is  [1665- 
1697],  as  a  court  of  exchequer  for  the  Bishop's  Revenue,  to 
determine  matters  between  him  and  his  tenants."  ^  No  judicial 
records  of  the  palatine  exchequer  are  now  in  existence,  and 
probably  none  were  ever  kept.  The  same  persons  sat  in  both 
courts,^  which  were  held  in  the  same  place.*    We  shall  hear  of 

1  Hale,  Jurisdiction  of  the  House  of  Lords,  47 ;  Kerly,  History  of  the 
Equitable  Jurisdiction  of  the  Court  of  Chancery,  27,  49-51. 

2  Spearman,  Inquiry,  17;  cf.  also  The  Practice  of  the  Court  of  Chancery 
of  Durham,  7-8. 

8  The  same  person  frequently  held  the  offices  of  chancellor,  and  receiver- 
general,  steward,  or  constable.  Robert  Wyclyff  held  the  first  and  last 
offices  in  1395  (Rot.  Skirlaw,  ann.  5,  m.  9  dorse,  curs.  33 ;  Scriptores  Tres, 
App.  No.  clxi).  William  Chancellor  made  a  similar  combination  in  Bishop 
Langley's  time  (Cursitor  211,  Nos.  7-8).  Henry  Gillowe  was  chancellor 
and  receiver-general  from  1466  until  1472  (Auditor  5,  No.  149).  In  1476 
John  Keyling  was  appointed  to  both  these  offices  by  Bishop  Dudley  (Rot.  i. 
Dudley,  ann.  i,  m.  i,  curs.  54).     Instances  might  readily  be  multiplied. 

*  From  a  survey  made  in  1388  we  learn  that  the  palace  green  contained 
the  houses  of  the  officers  of  the  chancery  and  exchequer,  and  "  una  aula  pro 
placitis  justiciariorum  "  (Ecclesiastical  Commissioners,  ministers'  accounts, 
220195).  A  new  exchequer  was  built  by  Bishop  Nevill  in  1437  (Chambre, 
cap.  vii,  in  Scriptores  Tres,  147). 


§  23]  THE  ECCLESIASTICAL  COURTS.  191 

the  exchequer  again  in  connection  with  the  history  of  the 
Durham  courts  in  the  present  century ;  but  at  no  point  in  our 
study  does  this  extremely  rudimentary  institution  take  on  any 
importance. 

§  23.    The  Ecclesiastical   Courts. 

The  system  of  spiritual  courts  in  the  palatinate  and  their  rela- 
tion to  the  temporal  judiciary  present  certain  curious  features 
occasioned  by  the  somewhat  anomalous  status  of  the  Bishop. 
The  application  of  the  doctrine  of  capacities  very  early  became 
necessary.  In  1293  it  is  clearly  expressed  in  these  words: 
"  Episcopus  Dunelmensis  habet  duos  status,  videlicet,  statum 
episcopi  quoad  spiritualia  et  statum  comiti  palacii  quoad  tene- 
menta  sua  temporalia."  ^  During  the  next  century  the  courts 
pushed  this  doctrine  to  its  logical  conclusion,  declaring  that  the 
Bishop,  being  in  his  diocese  both  lord  and  ordinary,  might  as 
lord  address  a  writ  to  himself  as  ordinary. ^  But  here  the  judges 
were  only  recognizing  a  state  of  things  already  in  existence, 
for  such  writs  are  to  be  found  as  early  as  the  beginning  of  the 
fourteenth  century.  The  commonest  are  no  doubt  those  mod- 
elled on  the  familiar  "  bref  a  levesque,"  by  means  of  which  the 
royal  courts  caused  the  bishop  of  any  diocese  to  certify  them  of 
some  matter  of  which  he  alone  had  cognizance,  such  as  bastardy, 
marriage,  divorce,  or  the  like.  From  these  the  palatine  instru- 
ments differ  only  in  the  address,  which  substitutes  the  Bishop 
for  the  king,  thus :  "  Ricardus  Dei  gratia  episcopus  Dunelmen- 
sis venerabili  in  Christo  patri  Ricardo  eadem  gratia  Dunelmensi 
episcopo  salutem."^  A  similar  document,  of  somewhat  later 
date  than  the  foregoing,  directs  a  certain  sum  of  money  to  be 
levied  on  the  ecclesiastical  goods  of  a  parson,  in  satisfaction  of 
a  judgment  obtained  against  him  in  the  temporal  courts  of  the 
Bishop.  The  address  is  the  same,  but  the  closing  threat  in- 
creases the  whimsicality  of  the  whole.* 

^  Rot.  Pari.,  21  Edw.  I,  i.  102-105. 

2  Year  Book  14  Edw.  Ill,  Trin.  290-292. 

3  Registrum,  ii.  890,  A.  D.  1312;  cf.  Ibid.,  912-913,  945,  a.  d.  1313,  and 
iii.  345,  A.  D.  1340. 

*  Ibid.,  iii.  336-337,  A.  D.  1340.     The  closing  fonnula  is  worth  preserv- 


192  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V- 

Along  with  these  diplomatic  grotesques  should  be  classed  a 
case  which,  interesting  and  instructive  as  it  is,  has  also  the  ad- 
vantage of  illuminating  the  pages  of  a  constitutional  study  with 
a  rare  gleam  of  humor.  In  1463  William  Byrd  brought  an  action 
in  the  consistory  court  of  Durham  against  Johanna  Byrd,  execu- 
trix of  the  will  of  her  late  husband  John  Byrd.  In  the  course 
of  the  action  Johanna  obtained  an  interlocutory  judgment  against 
William  for  the  sum  of  twenty  shillings.  When  she  sought  exe- 
cution of  this  judgment,  WilUam  stopped  the  proceedings  of  the 
court  by  bringing  a  writ  of  prohibition  from  the  Bishop's  chan- 
cery in  Durham.  Thereupon  Johanna  represented  that  it  was 
unreasonable  to  deny  cognizance  of  the  accessory  to  the  court  to 
which,  as  she  maintained,  the  principal  unquestionably  belonged. 
The  Bishop  then  issued  his  writ  directing  the  official  to  proceed 
to  execution  of  the  judgment  notwithstanding  the  former  pro- 
hibition.i 

Under  these  circumstances  we  should  expect  to  find  the  spir- 
itual jurisdiction  faring  better  in  an  ecclesiastical  state  like 
Durham  than  it  did  under  the  somewhat  jealous  regime  of  the 
kingdom ;  but  this  on  the  whole  was  not  the  case.  Apparently 
but  one  Bishop  made  any  effort  to  extend  his  spiritual  at  the  ex- 
pense of  his  temporal  jurisdiction.  In  1303  the  community  of 
the  bishopric  petitioned  the  king  and  the  Bishop  against  the 
encroachments  and  usurpations  of  the  courts  christian,  and  by 
the  charter  which,  as  we  have  seen,  it  was  able  to  wring  from 
the  Bishop,  succeeded  in  having  them  checked.^  This  appears 
to  be  the  only  tidings  of  such  encroachment  in  the  Durham 
records.  At  first  sight  it  seems  strange  that  the  strife  of  these 
competing  jurisdictions,  so  well  known  in  the  history  of  the 
kingdom,  does  not  ring  loudly  through  the  annals  of  the  palati- 
nate. But  the  Bishop,  it  must  be  remembered,  was  a  temporal 
baron,  a  great  feudatory  as  well  as  a  prelate,  and  in  such  cases 
of  divided  allegiance  men  have  preferred  to  remain  in  equilibrium 

ing:  "Et  sciatis  quod  nisi  hujusmodi  mandatum  nostrum  plenius  exe- 
quemini,  graviter  ad  vos  capiemus."  The  spectacle  of  the  Bishop  threaten- 
ing himself  is  not  without  its  humor. 

1  Rot.  iii.  Booth,  ann.  12,  m.  11,  curs.  50. 

^  Registrum,  iii.  62 ;  above,  p.  132. 


§  24]     COURTS  OF  ADMIRALTY  AND  MARSHALSEA.       193 

rather  than  to  range  themselves  definitely  on  either  side.^  Again, 
it  is  not  likely  that  the  crown  would  have  allowed  any  aggression 
on  the  part  of  the  spiritual  courts  even  in  an  exempt  jurisdiction. 
Besides,  the  king  administered  the  temporalities  during  vacan- 
cies, largely  influenced  the  selection  of  a  Bishop,  and  held  always 
in  the  background  the  possibility  of  such  violent  measures  as 
confiscation  or  invasion  of  the  palatine  liberties.  It  should  also 
be  remembered  that  the  Bishop  was  charged  with  the  task  of 
governing  a  more  or  less  turbulent  community,  distinctly  op- 
posed, as  we  have  seen,  to  any  extension  of  ecclesiastical  juris- 
diction. Finally,  the  temporal  courts  doubtless  yielded  as 
much  revenue  as  the  church  tribunals,  if  not  more. 


§  24.    The   Courts  of  Admiralty  and  Marshalsea. 

The  admiralty  jurisdiction  of  the  Bishops  of  Durham  has  a 
special  though  somewhat  obscure  history,  which  is  examined  in 
detail  in  another  place.^  It  will  be  sufficient  here  to  restate  the 
conclusions  to  which  the  evidence  leads.  From  a  very  early 
period,  probably  soon  after  the  Norman  Conquest,  the  Bishops 
of  Durham,  as  lords  of  a  great  franchise,  enjoyed  those  privi- 
leges which,  pertaining  to  the  king  throughout  the  realm,  later 
contributed  largely  to  the  development  of  a  true  admiralty  juris- 
diction. These  were  the  right  to  wreck  and  to  royal  fish  cast 
ashore,  the  regulation  of  ports  and  river  commerce,  including 
such  matters  as  the  erection  or  removal  of  weirs  and  kiddels, 
and  the  cognizance  of  pleas  arising  from  naval  or  commercial 
relations. 

In  the  kingdom  the  growth  of  the  admiralty  jurisdiction  from 
the  time  of  Edward  III  until  that  of  Henry  VIII  was  slow  and 
imperfect;  it  was  accomplished,  moreover,  under  the  pressure  of 
foreign  relations,  a  force  that  from  the  nature  of  the  palatinate 
could  not  act  upon  the  Bishops  of  Durham.  Pleas  that  were 
later  heard  in  the  admiralty  courts  the  Bishops  dealt  with  either 
by  special  commission  of  oyer  and  terminer,  or  in  their  chan- 

1  This  point  is  well  treated  in  Jenks,  Law  and  Politics  in  the  Middle 
Ages,  312-317. 
*  Below,  App.  ii. 

»3 


194  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

eery,  or  before  their  council  on  petition  to  that  body.  Obtain- 
ing in  this  fashion  the  profits  of  jurisdiction,  they  had  little 
inducement  to  erect  a  new  system  of  courts.  After  Henry  VIII 
had  reorganized  the  admiralty  courts  in  the  kingdom,  however, 
the  Bishops,  partly  in  imitation  of  the  royal  model  which  now 
furnished  them  with  a  pattern  easy  to  follow,  and  partly  per- 
haps to  indemnify  themselves  for  a  serious  loss  of  jurisdiction 
under  the  terms  of  the  statute  of  1536,  set  up  a  court  of  admi- 
ralty in  the  county  palatine.  This  step  may  have  been  taken 
during  the  reign  of  Henry  VIII.  In  the  next  century  we  find 
the  system  well  organized  and  obtaining  general  recognition. 

From  the  beginning  of  the  fourteenth  century  onward  there  is 
occasional  reference  to  a  court  of  marshalsea  in  the  palatinate. 
This  matter  has  no  constitutional  interest,  and  it  may  be  dis- 
missed here  with  a  passing  notice.^  The  word  "  marshalsea " 
is  rather  loosely  used  in  the  Durham  records,  but  it  seems  to 
refer  to  two  distinct  institutions,  (i)  to  the  court  of  the  marshal 
held  for  the  regulation  of  military  affairs  and  for  the  adjustment 
of  disputes  between  members  of  the  Bishop's  household  "  within 
the  verge,"  and  (2)  to  the  court  of  the  clerk  of  the  market  held 
in  all  cities  and  boroughs  in  the  county.  These  courts  seem 
never  to  have  been  regarded,  as  in  the  kingdom,  in  the  light  of 
a  grievance  or  an  oppression. 


§  25.    Local  Courts. 

The  bishopric  was  divided  into  four  wards,^  in  each  of  which 
in  the  thirteenth  century  was  held  a  three-weekly  tribunal  cor- 
responding to   the  hundred  court.^    Later  these  courts  were 

1  For  more  detailed  information  on  this  subject,  see  the  receipt  roll  of  1307, 
Boldon  Book,  App.  xxxii ;  sheriffs'  accounts,  A.  d.  1336,  1410,  1535,  Auditor 
I,  Nos.  I,  2,  40;  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  32  ;  Rot.  iii.  Nev- 
ill,  ann.  11,  m.  4,  curs.  44;  Rot.  i.  Ruthall,  ann.  4,  m.  9,  curs.  70;  Calendar 
of  Patent  Rolls,  1307-1313,  p.  384 ;  Registrum,  iv.  106:  Calendar  of  Close 
Rolls,  1318-1323,  p.  16;  Rot.  Pari.,  7  Ric.  II,  iii.  177  a;  27 Hen.  VIII,  cap. 
xxiv,  Statutes,  iii.  556-557 ;  Stubbs,  ii.  338,  346,  639 ;  Grazebrook,  The  Earl 
Marshal's  Court. 

*  Registrum,  iv.  276. 

«  Plac.  de  Quo  War.,  604. 


§25]  LOCAL   COURTS.  I95 

continued  for  the  purposes  of  the  sheriffs  tourn.^  There  were 
also  the  usual  monthly  meetings  of  the  county  court,^  as  well  as 
the  great  meetings,  the  ple?ius  comitatus^  Outlawry  was  de- 
creed in  the  county  court,  which  was  also  the  proper  place  for 
the  publication  of  all  matters  of  general  importance,  such  as  stat- 
utes, proclamations,  pardons,  and  the  like.*  Separate  county 
courts  were  held  in  Norhamshire  and  the  wapentake  of  Sad- 
berg.^  After  the  decadence  of  the  general  eyre  in  the  bishop- 
ric, suit  at  the  great  meetings  of  the  county  court  frequently 
occurs  as  an  incident  of  tenure.  The  inference  is  that  the  obli- 
gation to  attend  these  meetings  was  no  longer  general.^ 

After  the  fourteenth  century,  the  bulk  of  the  judicial  business  of 
the  county  court  was  transferred  to  the  assizes  and  quarter  ses- 
sions, though  small  civil  suits  were  still  heard  in  the  older  tribu- 
nalJ  The  county  court  of  Durham  was  no  exception  to  this  rule ; 
it  seems  to  have  survived  chiefly  for  the  purpose  of  such  suits 
and  of  conveying  land  by  surrender.^ 

^  Registnim,  iii.  346;  Rot.  Pari.,  7  Ric.  II,  iii.  177a;  sheriffs'  accounts, 
A.  D.  1336,  1535,  Auditor  i,  Nos.  i,  40;  receiver-general's  account,  A.  d. 
1454,  Ecclesiastical  Commissioners,  ministers'  accounts,  189696. 

a  Plac.  de  Quo  War.,  604. 

'  Feodarium,  214-215;  Letters  from  Northern  Registers,  214;  Registrum, 
iii.  346. 

*  Foedera,  iii.  pt.  i.  2;  Rot.  Pari.  7  Ric.  II,  iii.  177a;  Letters  from 
Northern  Registers,  214;  Registrum,  iii.  346;  above,  p.  84. 

^  See  an  original  inquest  post  mortem^  Auditor  i,  No.  3 ;  Rot.  vi.  Nevill, 
ann.  15,  m.  19,  curs.  47;  sherifE's  account,  A.  d.  1535,  Auditor  i,  No.  40. 

^  Registrum,  i.  258;  Rot.  E.  Langley,  ann.  17,  m.  8,  curs.  38;  Pollock 
and  Maitland,  i,  256-257.  The  frequent  appearance  on  the  sheriffs' accounts 
of  amercements  "pro  secta  curiae"  indicates  that  even  those  upon  whom 
the  obligation  still  rested  were  no  longer  very  careful  about  fulfilling  it. 

^  Gneist,  English  Constitution,  i.  370-375 ;  Prothero,  Statutes  and  Docu- 
ments, 76,  90,  96. 

®  Rot.  iii.  Booth  (undated),  m.  5  dorse,  curs.  50.  This  is  an  instance  of  a 
small  civil  suit  removed  from  the  county  court  by  a  writ  oipone^  on  the  de- 
fendant's representation  that  the  sheriff's  deputy  took  an  annual  pension  from 
the  plaintiff;  cf.  Pollock  and  Maitland,  ii.  663.  For  a  case  of  land  conveyed 
by  surrender,  see  Rot.  ii.  Tunstall,  ann.  2-3,  m.  25,  curs.  78.  On  the  later 
history  of  the  county  court,  see  "  A  Collection  of  Rules  and  Orders  of  the 
County  Court  at  Durham,"  in  Collectanea  ad  Statum  Civile  .  .  .  Comitatus 
Dunelmensis  Spectantia ;  Hutchinson,  Durham,  ii.  278,  note. 


196  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

A  court  of  pie-powder  was  held  in  the  fairs  and  markets  be- 
longing to  the  Bishop,^  and  there  were  the  usual  halmotes,  or 
local  courts,  on  the  manors  of  the  palatinate  as  elsewhere  in 
England;  but  they  present  no  pecuhar  features.^ 


§  26.    The  Act  of  Resumption  in  1536. 

We  have  now  worked  out  the  story  of  the  palatine  judiciary 
from  the  earliest  times  up  to  1536.  This  date  forms  a  landmark 
in  the  history  of  the  institution,  for  in  that  year  the  judicial  su- 
premacy of  the  palatinate  was  by  act  of  parliament  transferred 
from  the  Bishop  to  the  king.  The  judicial  machinery,  the  devel- 
opment of  which  we  have  been  tracing,  continued  to  exist,  shorn 
however  of  most  of  its  importance  ;  and  the  story  of  its  vicissi- 
tudes from  1536  until  the  present  day  will  now  be  followed. 

Our  point  of  departure  will  naturally  be  Henry  VIII's  sweep- 
ing measure.  This  is  entitled  "  An  acte  for  recontynuyng  of 
certayne  liberties  and  francheses  heretofore  taken  from  the 
Crowne."  ^  It  was  of  general  application,  but  it  had  a  par- 
ticular effect  on  Durham,  for  the  bishopric  stood  above  all  other 
liberties  and  honors  in  England  except  the  counties  palatine  of 
Chester  and  Lancaster.  These  had  now  long  been  united  to 
the  crown,  hence  the  transfer  of  the  sanction  of  their  judicial 
system  from  Henry  Tudor  ^//^  comes  palatinus  XoYi^xixyTvAox 
qud  rex  Angliae  was  practically  without  result.  In  Durham,  on 
the  other  hand,  the  lord  palatine  and  the  king  were  distinct 
physical  persons,  and  Henry  VIIFs  legislation  operated  to 
transfer  much  of  the  former's  dignity  to  the  latter. 

The  details  of  the  act  of  1536  are  as  follows.  The  Bishop 
loses  his  privilege  of  pardoning  offences  against  the  law,  for  this 
is  held  to  be  exclusively  an  attribute  of  royalty.  He  may  no 
longer  appoint  judicial  officers  of  any  sort;  all  such  officers  are 
in  future  to  be  created  under  the  king's  authority  and  by  his 
letters  patent.    All  writs,  indictments,  and  legal  processes  of  any 

^  1 7  Edw.  IV,  cap.  ii,  Statutes,  ii.  462. 

2  Boldon  Book,  31,  37,  38;  Registrum,  ii.  ii32,iii.6i,  iv.  338;  Halmote 
Rolls  (Surtees  Soc),  i.  Introd.  viii,  note. 

8  27  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  555  ff. 


§  26]  THE  ACT  OF  RESUMPTION  IN  1536.  197 

description  are  to  run  in  the  name  of  the  king  ;  and  offences  are 
to  be  described  as  against  the  peace  of  the  king,  not,  as  formerly, 
as  against  that  of  the  Bishop.  From  this  it  follows  that  the 
king  is  to  take  all  fines  and  amercements  imposed  on  judicial 
officers  for  contempt,  misdemeanor,  insufficient  return  of  writs, 
or  any  remissness  in  the  execution  of  their  duties.  It  is  dis- 
tinctly stated  that  the  liberties  of  the  bishopric  are  to  re- 
main unaltered.  All  judicial  officers  are  to  retain  the  same 
powers  and  duties,  although  taking  their  sanction  from  the  king 
instead  of  from  the  Bishop.  Finally,  and  perhaps  by  way  of  con- 
solation, it  is  provided  that  the  Bishop  of  Durham  for  the  time 
being,  and  his  temporal  chancellor,  shall  ex  officio  be  justices  of 
the  peace  for  the  county  palatine. 

It  has  been  suggested  that  Henry  was  moved  to  this  action  by 
indignation  against  the  people  of  Durham,  who  were  known  to 
have  taken  part  enthusiastically  in  the  Pilgrimage  of  Grace.^ 
This  theory  is  attractive  and  plausible,  but  unfortunately  it  will 
not  stand  in  face  of  the  facts.  The  act  was  passed  in  a  parlia- 
ment that  met  by  prorogation  on  February  4,  1536,  and  was  dis- 
solved on  April  4  next  f ollowing.^  The  insurrection  in  the  north 
did  not  break  out  until  October.  Importance  also  attaches  to 
the  fact  that  the  legislation  is  not  directed  against  Durham  alone 
but  is  of  general  application  ;  for  Cromwell,  whether  at  the  king's 
suggestion  or  on  his  own  motion,  had  conceived  the  plan  of  doing 
away  with  all  the  franchises  and  special  jurisdictions  in  England. 
In  his  list  of  matters  to  be  brought  before  the  parliament  that  actu- 
ally passed  the  act,  the  following  note  occurs  :  "  For  the  dissolu- 
tion of  all  franchises  and  liberties  throughout  this  realm,  and 
specially  the  franchise  of  spirituality."^  If  then,  as  Froude 
suggested,  the  increased  activity  of  the  central  judiciary  at  this 
time  was  one  of  the  forces  making  for  rebellion  in  the  northern 
counties,*  it  will  be  necessary  to  reverse  the  causal  connection 
between  the  statute  and  the  rebellion  as  proposed  by  the  histo- 
rians of  Durham. 

^  Hutchinson,  Durham,  i.  420 ;  Surtees,  Durham,  i.  p.  Ixix. 
"^  Parry,  Parliaments  of  England,  203. 

*  Calendar  of  Letters  and  Papers,  Henry  VIII,  x.  No.  254. 

*  Froude,  History  of  England,  iii.  94-95- 


198  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

But  Cromwell's  purpose  was  far  in  advance  of  his  time,  for  in 
the  sixteenth  century  there  is  no  question  of  abolishing  fran- 
chises so  long  as  they  can  be  accommodated  to  the  expansion  of 
royal  authority.  The  independent  organization  of  the  Durham 
judiciary  was  scrupulously  observed  in  the  application  of  the  new 
laws  made  by  Henry  VIII  and  Elizabeth.^  But  other  means  were 
found  for  reducing  the  palatinate,  which,  having  been  by  Henry 
VIII  deprived  of  its  judicial  independence  in  fact  though  not  in 
name,  was  by  his  daughter  most  unblushingly  robbed  of  its  pos- 
sessions. The  queen,  it  is  true,  had  the  pretext  of  punishing  the 
rebellion  of  1569,^  but  her  transactions  with  Bishop  Barnes  were 
without  even  this  show  of  justification.^ 

It  is  likely  that  the  chancery  of  Durham  escaped  the  operation 
of  Henry  VIII's  act;  the  chancellor  was  not  primarily  a  judicial 
officer,  and  no  mention  is  made  of  his  appointment  by  the  king. 
But  toward  the  close  of  Elizabeth's  reign  the  chancery  of  Dur- 
ham was  subjected  to  a  certain  degree  of  royal  control.  In  1596 
a  book  of  rules,  regulating  the  practice  of  the  palatine  chancery, 
was  drawn  up  and  issued  under  the  queen's  authority.*  In  1600 
an  equity  case  was  heard  "  before  Thomas  Calverly  esquire, 
chancellor  of  the  Countie  palatine  of  Durham ;  togeather  with 
the  assistance  and  in  the  presence  of  Edward  Drewe,  the 
Queen's  Maiestie's  seriant  at  Law,  then  and  yet  one  of  the 
Queen's  Maiestie's  justices  itinerant  in  the  said  Countie  and 
eftesones  likewise  at  large."  ^ 

§  2J.    The  Palatine  Judiciary  in  the  Seventeenth  and 
Eighteenth  Centuries. 

After  this  no  change  took  place  in  the  judicial  machinery  of 
the  palatinate  until  the  middle  of  the  seventeenth  century.  With 
the  outbreak  of  the  war  the  palatine  judiciary  collapsed.  The 
county  had  been  seriously  impoverished  by  the  neighborhood  of 

1  Cf.  5  Eliz.,  caps,  xxiii,  xxv-xxvii,  Statutes,  iv.  pt.  i.  453,  455,  456. 

2  13  Eliz.,  cap.  xvi,  Ibid.,  iv.  459.  Cf.  Dyer's  Reports,  286-289;  Coke, 
Fourth  Institute,  219;  Sharpe,  Memorials  of  the  Rebellion  of  1569. 

3  Strype,  Annals,  ii.  App.  65-66. 

*  The  Practice  of  the  Court  of  Chancery  of  Durham,  Introd.  i. 

*  Rot.  Matthew,  ann.  5,  m.  21,  curs.  92. 


§  27]  SEVENTEENTH  AND  EIGHTEENTH  CENTURIES.    1 99 

the  Scottish  army  and  by  the  contributions  that  it  had  levied, ^  and 
when  the  army  moved  southward  the  Bishop  and  the  dean  fled  in- 
continently .^  In  1646  the  palatinate  was  formally  abolished  and 
the  lands  of  the  see  were  put  in  the  hands  of  trustees,  in  whom 
also  all  the  jura  regalia  were  vested.^  The  next  year  these  trustees 
were  directed  to  confer  with  the  judges  as  to  "  how  and  in  what 
manner  Fines,  and  Common  Recoveries,  and  other  assurances, 
and  also  the  Common  Justice  of  the  Kingdom, maybe  dispensed 
and  carried  on  in  the  said  County  Palatine  as  in  other  parts  of 
the  Kingdom."  *  Sir  Henry  Vane  and  two  other  persons  were 
directed  to  bring  in  an  ordinance  for  this  purpose.^ 

Legislation  on  this  comparatively  insignificant  point  dragged 
on,  and  the  county  palatine  remained  in  judicial  chaos.  In  1648 
the  ordinance  had  not  yet  been  brought  in ;  a  temporary  arrange- 
ment was  therefore  made  by  sending  Wastall,  one  of  the  trus- 
tees of  the  suppressed  bishopric,  to  Durham  under  a  commission 
of  gaol-delivery.'  In  the  same  year  the  committee  of  the  county 
jogged  the  memory  of  parliament  by  a  petition  praying  for  some 
speedy  legislation  7  Under  this  pressure  parliament  in  1649 
ordered  a  conference  between  Thorpe,  one  of  the  barons  of  the 
exchequer,  who  went  on  the  northern  circuit  in  that  year,  the 
trustees  of  the  bishopric,  and  the  gentlemen  of  the  county; 
these  persons  were  to  prepare  and  bring  in  an  act  designed  to 
assimilate  the  county  palatine  to  the  northern  circuit.^  Four 
days  after,  this  act  was  twice  read  and  committed,  and  later  in 
the  same  day  reported  and  passed.^ 

In  1650  the  county  petitioned  for  a  recontinuance  of  the 
local  courts,  which  were  probably  popular .^^  This  request  did 
not  obtain  a  favorable  hearing,  for  in  165 1  the  reorganized  par- 
liament passed  an  act  similar  to  that  of  1649,  hut  with  arrange- 
ments considerably  more  definite  for  the  registration  of  fines  and 
recoveries,  placing  Durham  in  this  respect  on  the  same  footing 

1  Hist.  MSS.  Com.,  Reports,  iv.  28;  Rushworth,  Collections,  ii.  1272. 

2  Rushworth,  Collections,  ii.  1239. 

'  Scobell,  Acts  and  Ordinances,  pt.  i.  99-101,  A.  d.  1646,  cap.  Ixiv. 

*  Commons'  Journals,  v.  246.  ^  Ibid. 
«  Ibid.,  544.                             '  Ibid.,  678.  8  Ibid. 

•  Ibid.,  vi.  233,  236-237.  10  Hutchinson,  Durham,  i.  514. 


200  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

as  any  Other  county  in  the  kingdom.^  This  step  marked  an  im- 
provement, but  it  did  not  go  far  enough ;  accordingly  in  the  same 
year  (1651)  one  of  the  trustees  of  the  bishopric  was  ordered  to 
bring  in  an  act  "  to  put  the  County  Palatine  of  Duresme  in  such 
condition  as  other  Counties  of  this  Commonwealth  are  in."  ^ 
This  too  was  delayed,  but  an  act  passed  in  1654  put  Durham, 
for  all  judicial  purposes,  on  the  same  basis  as  any  other  county 
in  England  ;  ^  and  in  this  state  it  remained  until  the  palatinate 
revived  with  the  Restoration. 

With  the  return  of  Charles  II  things  went  back  unquestioned 
to  their  former  status.  John  Cosin,  a  name  familiar  to  all  stu- 
dents of  English  church  history,  was  made  Bishop  in  November 
and  at  once  proceeded  to  exercise  all  the  judicial  privileges  en- 
joyed by  his  predecessors.  It  has  been  said  that  by  the  act 
abolishing  feudal  tenures  the  Bishops  of  Durham  were  deprived 
of  their  court  of  wards,  and  for  this  loss  received  a  compensation.* 
It  is,  however,  practically  certain  that  the  Bishops  of  Durham 
never  maintained  such  a  court.  Henry  VIII  set  up  the  court  of 
wards  in  1541,  and  it  is  true  that  the  prerogative  of  the  Bishop 
of  Durham  in  respect  to  the  holding  of  wardships  is  admitted 
by  the  terms  of  this  legislation.^  Such  an  admission,  it  might  be 
said,  is  tantamount  to  an  enabling  clause  for  the  Bishop  to  set 
up  a  court  of  wards ;  but  even  if  this  were  the  case,  there  is  no 
record  of  any  such  court.  Also  the  terms  of  the  letters  patent 
by  which  the  Bishop  received  compensation  after  the  act  abol- 

1  The  whole  matter  is  to  be  arranged  "  according  to  the  accustomed  man- 
ner of  taking  Fines  and  Recoveries  of  Lands  lying  in  any  other  county  within 
the  commonwealth  of  England."  They  are  to  be  registered  at  Westminster, 
in  the  court  of  common  pleas,  in  the  same  manner  as  fines  of  lands  "  lying 
within  the  counties  of  Monmouth  and  Hereford,  or  any  other  county  or 
counties  of  England  which  are  not  or  have  not  been  counties  palatine  ;  "  and 
all  writs  connected  with  these  processes  are  to  be  made  out  by  the  cursitor 
of  Monmouth  and  Hereford,  who  holds  the  same  office  for  Durham.  See 
Scobell,  pt.  ii.  156,  a.  d.  1651,  cap.  ix. 

2  Commons'  Journals,  vi.  599. 

«  Scobell,  pt.  ii.  305-307,  a.  d.  1654,  cap.  xxiii. 

*  Hutchinson,  Durham,  i.  539  ;  12  Car.  n,cap.  xxiv.  Statutes,  v,  259-266. 

5  32  Hen.  VIII,  cap.  xlvi,  §  25,  Statutes,  iii.  805-806.  The  Bishop's 
right  in  the  matter  of  wardships  is  mentioned  in  the  so-called  statute,  "  Prae- 
rogativa  Regis,"  which  is  here  referred  to.     See  Statutes,  i.  226. 


§  27]  SEVENTEENTH  AND  EIGHTEENTH  CENTURIES.    201 

ishing  feudal  tenures  imply  that  he  was  being  reimbursed  for  the 
loss  of  the  profitable  right  of  wardship,  and  not  for  the  loss  of  juris- 
diction connected  with  that  right.  A  yearly  rent  of  ^880  due  to 
the  crown  is  remitted  to  the  Bishop  in  view  of  his  loss  of  revenue 
consequent  upon  the  abolition  of  feudal  tenures  by  the  late  act.^ 
The  fact  that  this  statute  is  referred  to  by  name  as  the  "  act  for 
taking  away  the  court  of  wards  and  liveries  "  may  have  occasioned 
the  supposition  that  the  Bishop  maintained  such  a  court,  although 
the  court  referred  to  in  the  statute  is  the  royal  court  of  wards, 
and  no  mention  is  made  of  more  than  one  such  court. 

Shortly  before  the  revolution  of  1688  an  attempt  was  made  to 
abolish  the  county  palatine  by  act  of  parliament.  This  movement 
met  with  strong  opposition  at  Durham,  where  the  local  courts 
were  popular.  Two  petitions  survive  that  were  prepared  at  this 
time  and  intended  no  doubt  for  parliament,  although  it  does  not 
appear  that  they  ever  reached  that  body.  The  first,  proceeding 
on  general  principles  and  on  the  high  antiquity  of  the  county 
palatine,  points  out  the  great  convenience  of  the  local  courts  to 
the  inhabitants  of  Durham,  who  are  provided  with  good  and 
speedy  justice  without  the  necessity  of  going  to  Westminster.^ 
The  second  petition  is  more  elaborate;  it  represents  that  the 
suppression  of  the  palatine  courts  will  tend  to  the  manifest  dis- 
herison of  the  people  of  the  county,  "  who  were  and  are  borne  to 
the  sure  use  and  enjoyment  of  the  Laws  of  the  County  (which  are 
and  always  have  been  conformable  to  y®  Laws  of  the  Land) 
and  distributed  at  their  doors,  in  the  Courts  within  the  County, 
with  great  ease  and  little  charge."  The  petitioners  are  tradesmen 
of  the  city  of  Durham,  and  their  chief  line  of  reasoning  is  that, 
the  courts  once  removed,  the  people  of  Durham  county  will  no 
longer  have  any  inducement  to  come  into  the  city  and  accord- 
ingly will  not  spend  their  money  there.^ 

1  Rot.  Cosin,  No.  39,  curs.  116. 

2  Hutchinson,  Durham,  i.  561. 

3  "  Some  Reasons  for  continuing  the  County  Palatine  of  Durham  and  its 
Antient  Jurisdiction  and  Courts  of  Law  and  Equity,"  and  under  this  in  an- 
other hand  the  phrase,  "  For  the  most  part  very  trifling."  Auditor  3,  No. 
138.  There  are  twelve  heads,  of  which  the  most  cogent  is  the  one  quoted 
in  the  text.     The  vocation  of  the  petitioners  suggests  the  preoccupations 


202  THE  JUDICIARY  OF  THE  PALATINATE.     [Ch.  V. 

The  effort  to  suppress  the  local  courts  of  Durham  at  this 
time  failed.  There  was,  however,  within  the  bishopric  a  strong 
party  of  reform  which  made  itself  heard  again  in  the  beginning 
of  the  eighteenth  century.  The  leader  of  this  movement  was 
Gilbert  Spearman,  whose  father,  John  Spearman,  had  been  for 
many  years  under-sheriff  of  the  county  palatine.  Spearman 
published  in  1729  his  "  Inquiry,"  the  joint  work  of  his  father  and 
himself,  his  own  share  consisting  of  a  violent  attack  upon  the 
existing  institutions  of  the  palatinate.^  Spearman  did  not  suc- 
ceed to  his  father's  office,  for  Bishop  Talbot  abolished  it  with 
the  dark  intention,  as  our  author  points  out,  of  corrupting  juries.^ 
Under  these  circumstances  little  penetration  will  be  needed  to 
discover  the  animus  of  the  book. 

The  author  objects  first  to  the  general  principle  of  an  inde- 
pendent jurisdiction  in  Durham  and  the  means  taken  to  preserve 
that  independence.  Next  he  calls  attention  to  several  undoubted 
abuses,  which,  as  throwing  light  on  the  working  of  the  Durham 
judiciary  at  this  period,  have  much  interest  for  us.  For  ex- 
ample, he  complains  that  the  court  of  chancery  is  held  but  once 
a  year,  and  then  for  no  more  than  a  few  days ;  ^  also  that  the 
abolition  of  the  office  of  under-sheriff  has  reduced  the  sherifE's 
tourn  to  a  mere  formality,  so  that  juries  are  no  longer  sum- 
moned or  presentments  made.*  Then  follow  loud  complaints 
against  a  somewhat  unusual  procedure  in  the  attachment  of 
goods,  though  the  horrors  of  this  injustice  are  mitigated  by  the 
author's  admission  (in  a  foot-note)  that  he  has  misread  a  statute.^ 
A  source  of  more  serious  complaint  is  against  the  members  of 
the  palatine  bench.  They  are  described  as  clergymen  and  trades- 
men, whose  ignorance  of  the  law  is  sufficiently  proved  by  the  fact 
that  one  justice  desired  to  see  John  Doe  and  Richard  Roe  in  order 

that  led  them  to  insist  on  the  convenience  of  having  justice  delivered  at 
one's  door. 

^  Surtees,  Durham,  i.  Introd.  7,  and  pt.  ii.  95. 

«  Inquiry,  93-94.  »  Ibid.,  56.  *  Ibid.,  102-103. 

*  Ibid.,  53-54.  Spearman  also  rails  against  the  very  proper  precaution 
taken  in  respect  to  attorneys  in  the  palatinate,  complaining  that  foreign  attor- 
neys are  not  allowed  to  practise  there,  and  that  others  are  required  to  take 
an  oath  not  to  carry  any  suit  outside  the  jurisdiction  when  it  is  possible  to 
have  it  determined  within  (Ibid.,  55). 


§  28]  CHANGES  IN  THE  PRESENT  CENTURY,  203 

to  reprimand  them  for  their  litigiousness.  Even  the  Bishop,  when 
he  once  appeared  on  the  bench,  seems  to  have  fallen  into  the 
same  error.^  Judicial  offices,  it  appears,  were  sold  to  unsuitable 
persons,  and  prosecutions  in  criminal  cases  were  conducted  by  the 
Bishop's  officers,  not  ex  officio  but  at  the  expense  of  the  prose- 
cutor. And  finally  complaint  is  made  that  the  records  of  the 
palatinate  are  improperly  kept,  a  fact  that  we  have  cause  to  recog- 
nize and  lament  to-day .^  There  seems,  indeed,  to  be  little  doubt 
that  Bishop  Talbot  was  neither  a  wise  nor  a  disinterested  admin- 
istrator ;  certainly  he  was  extremely  unpopular  among  his  sub- 
jects.^ Spearman's  attack  then,  although  directed  against  the 
judicial  system  of  the  palatinate,  falls  short  of  its  mark :  it  proves 
no  more  than  that  the  system  was  improperly  administered. 


§  28.    The  Palatine  Judiciary  in  the  Present  Century. 

Toward  the  close  of  the  eighteenth  century  an  effort  was 
made  to  amend  this  state  of  things ;  and  particularly  to  improve 
the  chancery  by  securing  the  services  of  distinguished  men; 
Lord  Eldon  and  Sir  Samuel  Romilly  each  held  at  various  times 
the  office  of  chancellor  of  the  county  palatine.*  With  the  open- 
ing years  of  the  present  century  the  court,  despite  the  attempts 
made  to  revive  it,  had  fallen  into  decrepitude.  Between  1825  and 
1836,  5084  writs  issued  out  of  the  Durham  chancery,  and  an 
average  of  six  cases  a  year  were  heard  there ;  ^  there  is  a  total 
of  sixty-one  for  the  ten  years,  the  smallest  number  for  any  one 

*  Spearman,  Inquiry,  102-103. 

2  "  The  Repository  or  Office  of  Custos  Rotulorum,  where  the  Records  of 
the  County  were  anciently  kept,  is  so  moist,  mouldered  and  decayed  that 
most  of  the  Ancient  Records  are  either  lost,  eat  by  rats,  or  destroyed  "  :  Ibid., 
103. 

»  Hutchinson,  Durham,  i.  572-573;  Surtees,  Durham,  i.  pp.  cxx-cxxi. 

*  Temple  v.  Ecclesiastical  Commissioners,  in  Law  Journal  Reports,  1854, 
xxiii.  673-676.  See  The  Practice  of  the  Court  of  Chancery  of  Durham,  9 ; 
Hansard,  Debates,  3d  Series,  xxxiv.  123. 

5  Returns  respecting  the  Courts  of  Durham,  Pari.  Papers,  1836,  vol.  xliii. 
1 61-162.  Five  thousand  and  twenty-two  of  these  writs  were  issued  to  the 
sheriff,  and  on  his  capias  became  the  bases  of  actions  in  the  court  of  pleas  or 
county  court. 


204  THE  JUDICIARY  OF  THE  PALATINATE.      [Ch.  V. 

year  being  four  and  the  largest  seven .^  The  court  of  pleas  at 
this  time  was  more  active ;  during  the  came  period  it  heard  one 
hundred  and  fifty  causes,  though  about  half  of  these  came  up, 
by  one  writ  or  another,  from  the  county  court.  The  latter  enter- 
tained a  large  number  of  actions,  but  principally  those  of  debt 
in  which  the  sum  was  under  forty  shillings.^  A  court  of  king's 
bench  for  Durham  was  intermittently  held  at  Serjeant's  Inn ; 
Lord  Denman  was  chief  justice  of  this  body  in  1836." 

These  courts  were  extremely  popular;  and  when  the  govern- 
ment undertook  to  abolish  them  in  its  general  reform,  it  met  with 
so  strong  an  opposition  that  it  was  found  expedient  to  reorganize 
rather  than  to  destroy  the  palatine  judiciary.  In  1835  Lord 
Melbourne  suggested  to  the  Church  Inquiry  Commission  that  it 
would  be  desirable  to  separate  the  palatine  jurisdiction  from  the 
see  of  Durham ;  this  suggestion  was  welcomed  by  the  commis- 
sioners, who  incorporated  it  in  their  second  report,  with  the  re- 
mark that  its  adoption  would  enable  them  further  to  reduce  the 
revenues  of  the  see.*  It  is  worth  noting  that  the  idea  of  depriv- 
ing the  Bishop  of  Durham  of  his  temporal  power  originated  with 
Lord  Melbourne.  The  movement  was  of  course  quite  in  har- 
mony with  the  spirit  of  reform  then  agitating  England;  but 
neither  the  credit  nor  the  responsibility  of  it  should  be  laid  at 
the  door  of  the  Ecclesiastical  Commission,  or  at  that  of  its  pred- 
ecessor, the  Church  Inquiry  Commission. 

The  proceedings  following  on  Lord  Melbourne's  suggestion 
and  the  report  of  the  commissioners  were  extremely  hurried,  for 
the  see  was  vacated  by  the  death  of  Bishop  Van  Mildert  early  in 
1836,  and  it  was  desirable  to  have  it  filled  as  soon  as  possible. 
The  report  was  submitted  on  the  fourth  of  March.  On  the 
twenty-fourth  of  that  month  the  chancellor  of  the  exchequer 
obtained  leave  to  bring  in  a  bill  "  for  more  perfectly  uniting  to 
the  Crown  the  County-Palatine  of  Durham,  and  for  the  commo- 

1  Returns  respecting  the  Courts  of  Durham,  Pari.  Papers,  1836,  vol.  xliii. 
161-162. 

2  Ibid. 

*  Hansard,  3d  Series,  xxxiv.  300. 

^  Ibid.,  6;  Church  Commissioners*  Report  (Second),  in  Pari.  Papers, 
1836,  vol.  XXX vi. 


§  28]  CHANGES  IN  THE  PRESENT  CENTURY.  205 

dious  administration  of  justice  within  the  same,"  which  he  some- 
what disingenuously  described  "  as  intended  to  carry  into  effect 
the  recommendation  of  the  Commissioners  of  Inquiry  relative  to 
the  See  of  Durham."^  One  of  the  members  for  Durham  pro- 
tested against  any  diminution  of  the  Bishop's  revenue,  but  noth- 
ing was  said  of  the  courts  of  justice.^  When  the  bill  was  brought 
before  the  house  of  commons  in  May,  it  was  found  to  provide  for 
the  complete  abolition  of  the  judicial  system  of  the  palatinate.^ 

The  battle  was  fought  out  in  the  house  of  lords.  The  govern- 
ment explained  that  the  bill  was  designed  ''to  relieve  and  ex- 
onerate future  Bishops  of  the  diocese  from  the  exercise  of 
functions  which,  if  not  incompatible  with  an  office  of  a  religious 
and  episcopal  nature,  at  least  interfered  with  the  time  for  devo- 
tional and  other  duties  annexed  to  the  sacred  character."  *  The 
bill  was  bitterly  opposed  by  Lord  Londonderry,^  who  produced 
in  support  of  his  arguments  a  great  number  of  petitions  from 
the  county  of  Durham.  All  these  followed  one  line,  pointing 
out  that  the  courts  of  the  palatinate  saved  the  people  great  ex- 
pense in  all  matters  of  equity  and  administration  in  chancery, 
and  in  the  recovery  of  small  debts  in  the  county  court,  by 
making  it  unnecessary  for  them  to  go  to  Westminster;  and, 
further,  that  no  abuse  or  corruption  in  the  administration  of 
justice  in  the  palatinate  had  been  proved.^  Great  pressure  was 
brought  to  bear  on  the  government  for  the  preservation  of  the 
local  courts  of  Durham.  Lord  Lyndhurst  expressed  the  opinion 
that  it  would  be  desirable  to  retain  the  court  of  pleas,"  and 
eventually  Lord  Eldon  was  induced  to  say  as  much  for  the 
chancery.^ 

The  government  at  length  gave  way,  and  found  a  solution  of 
the  difficulty  in  the  plan  of  attaching  the  franchise  to  the  crown  ; 

^  Hansard,  3d  Series,  xxxii.  444.  ^  Ibid.,  444-445. 

8  Pari.  Papers,  1836,  vol.  iii.  Public  Bills  136,  213. 

*  Hansard,  3d  Series,  xxxiii.  11 79. 

*  Lord  Londonderry  was  the  representative  of  two  ancient  and  power- 
ful families  of  the  palatinate,  the  Vanes  and  the  Tempests.  See  Surtees, 
Durham,  iii.  214. 

*  Hansard,  3d  Series,  xxxiv.  4-5. 

'  Ibid.,  xxxiii.  1178-1179.  *  Ibid.,  xxxiv.  122. 


206  THE  JUDICIARY  OF  THE  PALATINATE,     [Ch.  V. 

this  step  allowed  the  new  Bishop  to  be  installed  at  once,  but 
committed  no  one  to  the  indefinite  retention  of  the  palatine 
judiciary.^  The  credit  of  this  scheme  seems  to  be  due  to  Lord 
Eldon.  It  was  proposed  on  June  lo,  and  on  June  21  the  bill 
became  an  act.  The  measure  provides  that  the  palatine  j  uris- 
diction  of  the  Bishop  of  Durham  shall  be  separated  from  the 
bishopric  and  vested  in  the  crown  **  as  a  Franchise  and  Royalty 
separate  from  the  Crown,  and  shall  be  exercised  and  enjoyed  by 
His  Majesty  ...  as  a  separate  Franchise  and  Royalty."  The 
county  court  is  specifically  abolished,  and  the  sheriff  of  Durham 
is  authorized  to  hold  the  courts  usual  in  other  English  counties. 
The  king  is  to  appoint  a  custos  rotuloruMy  and  provision  is  made 
for  the  compensation  of  office-holders  who  are  deprived  by  the 
present  act.  The  statute  concludes  with  a  definition  of  the  extent 
of  the  county  and  certain  reservations  of  rights  to  the  bishopric.^ 
In  spite  of  Lord  Lyndhurst's  opinion,  the  retention  of  the 
court  of  pleas  did  not  prove  quite  successful.  Accordingly  in 
1839  it  was  regulated,  or  rather  reorganized,  by  "An  Act  for 
improving  the  practice  and  proceedings  of  the  Court  of  Pleas 
for  the  County  Palatine  of  Durham  and  Sadberge."  ^  A  com- 
parison of  this  act  with  the  state  of  things  three  centuries 
earlier  affords  an  interesting  comment  on  the  ingenuity  of  Eng- 
lish conservatism.  The  form  and  name  of  the  palatine  judiciary 
are  retained,  but  everything  that  made  it  distinctively  palatine^ 
those  immunities  that  so  perplexed  the  fifteenth-century  jus- 
tices, are  scrupulously  removed.  There  is  no  longer  the  remot- 
est possibility  of  a  collision  between  the  two  jurisdictions.  The 
Durham  court  of  pleas  was  further  regulated  by  the  common-law 
procedure  acts  of  1852, 1854,  and  i860.  It  did  not,  however,  sur- 
vive the  tremendous  judicial  upheaval  of  1870-79  ;*  and  in  1873 
its  jurisdiction  was  definitely  transferred  to  the  high  court  of 
justice.^     Few  English  institutions  have  been  more  essentially 

^  Hansard,  3d  Series,  xxxiv.  298. 

*  6-7  William  IV,  cap.  xix,  Statutes  at  Large,  xiv.  67-68. 
'  2-3  Vict.,  cap.  xvi,  Ibid.,  xv.  42-48. 

*  17-18  Vict.,  cap.  cxxv,  §  loi,  Ibid.,  xxii.  455;  18-19  Vict,  cap.  Ixvii, 
§  8,  Ibid.,  xxii.  647;  23-24  Vict.,  cap.  cxxvi,  §§  40,  41,  Ibid.,  xxix.  958. 

6  36-37  Vict.,  cap.  Ixvi,  §§  16,  77,  7^,  92,  Public  General  Statutes,  312, 
340-343,  347. 


^  28]  CHANGES  IN  THE  PRESENT  CENTURY.  20/ 

foreign  to  the  temper  of  the  nation  and  to  the  tendency  of  its 
constitutional  development ;  none  has  had  a  longer  continuous 
existence. 

More  fortunate  than  the  court  of  pleas,  the  chancery  of  Dur- 
ham weathered  the  storm  of  judicial  reorganization  and  still  sur- 
vives. Until  recent  years  it  has  shown  little  activity.  About 
1850,  indeed,  it  was  nearly  dead  of  inanition:  the  chancellor 
visited  Durham  but  once  or  twice  in  the  year,  and  remained  no 
longer  than  the  few  hours  between  the  arrival  of  one  train  and 
the  departure  of  another.  Practically  the  only  business  before 
the  court  was  the  administration  of  charitable  bequests.  The 
chancellor  none  the  less  took  the  old  fees,  namely,  ;£"ioofor  each 
session  and  a  fixed  stipend  of  forty  marks  (^£26  i^s.  4^.),  with 
an  allowance  of  fourteen  shillings  for  wax.  It  seemed  to  the 
Ecclesiastical  Commissioners  in  their  economy  that  this  fee 
should  be  withheld;  whereupon  Temple,  the  chancellor  of 
Durham,  brought  an  action  against  them.  The  lord  chancellor 
held  that,  under  the  act  6-j  William  IV,  cap.  xix.  Temple  should 
recover.  "  I  feel  not  the  least  doubt,"  said  he,  "  but  that  when 
the  legislature  passed  this  act,  they  contemplated  that  all  that 
had  de  facto  been  paid  to  the  officers,  including  the  chancellor, 
should  be  continued,  whether  the  payment  could  have  been  re- 
coverable by  an  action  against  the  Bishop  or  not.  My  opinion, 
therefore,  is  that  the  chancellor  is  entitled  to  what  is  now 
claimed."  ^ 

In  1889  the  chancery  court  was  overhauled  and  assimilated  to 
the  new  judicial  conditions  of  the  kingdom  by  the  *'  palatine  court 
of  Durham  act"  (52-53  Vict,  cap.  xlvii).  The  principal  change 
introduced  by  this  measure  was  the  provision  that  appeals  should 
in  future  lie  to  the  court  of  appeal  and  thence  to  the  house  of 
lords,  and  that  no  appeal  from  any  order  or  judgment  of  the 
chancellor  of  Durham  should  be  taken  directly  to  the  house  of 
lords.2  Under  the  present  chancellor  the  court  has  become  rela- 
tively very  active.  A  selection  of  cases  from  the  year  1897  shows 
a  considerable  variety  of  matters  dealt  with,  such  as  an  attempt 

^  Temple  v.  Ecclesiastical  Commissioners,  in  Law  Journal  Reports,  1854, 
xxiii.  673-676. 

^  52-53  Vict.,  cap.  xlvii,  §  11,  Public  General  Statutes,  195-196. 


208  THE  JUDICIARY  OF  THE  PALATINATE.     [Ch.  V. 

to  establish  a  right  of  way,  a  breach  of  covenant  in  the  alleged 
maintenance  of  a  nuisance  on  land  sold  under  restrictive  con- 
ditions, and  a  number  of  administrative  cases.^ 

We  have  now  formed  some  notion  of  the  organization  of  the 
palatine  judiciary.  We  have  traced  its  origin,  its  development, — 
in  which  it  followed  the  model  of  the  royal  judiciary,  but  without 
producing  the  highly  articulated  system  of  courts  that  grew  up 
in  the  kingdom,  —  its  degeneration,  and  its  final  disappearance 
from  the  field  of  history,  though  not  without  visible  traces  left 
behind.  With  this  knowledge  we  may  pass  to  the  more  inter- 
esting consideration  of  the  relation  of  the  royal  and  palatine 
judicial  systems. 

1  The  Dean  and  Chapter  v.  T.  Lickley ;  Wooler  v.  Lord  Barnard ;  Weth- 
erell  v.  Barney ;  Winter  v.  Berkeley.  These  cases  are  not  reported,  but  a 
brief  summary  of  them  appears  in  the  local  journals.  A  collection  of  these 
unofficial  reports  has  been  very  kindly  loaned  to  me  by  the  present  chancellor 
of  the  county  palatine,  T.  Milvain,  Esq.,  Q.  C. 


CHAPTER   VI. 

THE   PALATINE   COURTS   IN   RELATION   TO  THE 
ROYAL  JUDICIARY. 

§  29.   Competence  of  the  Palatine  Courts. 

In  the  preceding  chapter  an  attempt  has  been  made  to  show 
the  origin  and  growth  of  a  special  jurisdiction  in  the  bishopric 
of  Durham,  and  the  development  of  a  system  of  law  courts 
answering  in  most  essentials  to  that  of  the  kingdom.  We  shall 
now  naturally  ask  what  were  the  relations  of  these  jurisdictions. 
In  order  to  arrive  at  an  answer  to  this  question  we  must  first 
understand  the  extent  of  the  competence  of  the  palatine  judi- 
ciary, that  is,  we  must  try  to  discover  what  scope  was,  in  the 
general  theory  of  the  law,  normally  assigned  to  the  activities  of 
the  palatine  courts. 

We  have  already  met  with  Henry  IFs  charter  granting  to  the 
Bishop  of  Durham  the  right  to  hold  his  court  in  respect  to  all 
matters  of  which  his  predecessors  took  cognizance,  and  laying 
on  the  people  of  the  bishopric  the  obligation  of  pleading  in  that 
court  and  not  elsewhere  until  the  Bishop  should  make  default  of 
justice.^  In  another  charter  the  king  grants  an  indemnity  for 
the  mission  of  his  justices  into  the  bishopric.^  These  justices 
therefore  did  not  ordinarily  come  into  the  bishopric,  and  liti- 
gants there  were  forced  to  carry  their  complaints  to  the  local 
courts.  The  Bishop's  justices,  then,  had  a  general  competence, 
a  cognizance  of  all  local  pleas.  This  doctrine  was  called  into 
question  between  1206  and  1208  in  Geoffrey  Fitz  Geoffrey's 
case,^  from  which  it  appeared  that  the  Bishop  was,  and  had 
been,  holding  all  pleas  by  his  own  writ  to  the  exclusion  of  the 
king's  writ.  Geoffrey's  case  did  no  more  than  bring  the  matter 
into  question,  for  in  its  conclusion  the  point  of  law  was  not  deter- 

1  Scriptores  Tres,  App.  No.  xxxii. 

2  Ibid.,  No.  xxxi.  •  See  below,  App.  i. 

14 


210      THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

mined.  In  1208  the  Bishop  died,  and  the  see  remained  vacant 
until  12 1 7.  The  point  was  soon  after  raised  again,  though  in 
what  shape  we  cannot  tell.  At  any  rate,  in  1224  the  king 
directed  the  justices  of  the  palatinate  to  abstain  from  holding 
any  pleas  by  the  Bishop's  writ  until  the  king's  court  should 
have  decided  whether  these  writs  and  liberties  belonged  to  the 
Bishop  of  Durham  by  right  of  his  bishopric  or  were  an  usurpa- 
tion on  the  king's  crown  and  dignity.^  The  question,  however, 
did  not  come  before  the  king's  court,  and  the  Bishop  continued 
to  enjoy  his  privilege  undisturbed.  Possibly  some  compromise 
had  been  reached.^  Five  years  later  appears  the  elaborate  and 
minute  testimony  of  the  "  Convenit  "  and  the  "  Attestaciones  " 
to  the  exclusive  local  jurisdiction  of  the  palatine  courts,^  and  this 
is  sufficiently  confirmed  by  the  quo  warranto  proceedings  of 
Edward  I.* 

All  this  by  way  of  review ;  and  yet  in  a  new  connection  it  is 
possible  to  derive  fresh  conclusions  from  old  material,  as,  for 
example,  the  fact  that  the  supremacy  of  the  palatine  courts  was 
local  and  subject  in  the  last  resort  to  the  supreme  authority  of 
the  king.  We  shall  best  arrive  at  a  more  detailed  knowledge  of 
the  competence  of  the  palatine  courts  by  the  negative  process 
of  examining  the  limitations  set  on  that  competence  by  the  royal 
authority.  The  whole  judicial  system  of  the  palatinate  was  over- 
shadowed by  the  ultimate  supremacy  of  the  crown.  This  made 
itself  little  felt  up  to,  and  even  during,  the  brilliant  pontificate 
of  Anthony  Bek  (1283-13 10).  After  that  time,  however,  the 
crown  exerted  its  authority  in  various  ways.  For  one  thing, 
Bek's  rule  had  been  too  brilliant;  then  too,  the  crown  was 
now  better  able  to  act.  "Kings,"  it  has  been  said,  "have 
long  hands ;  "  ^  and  in  the  administration  of  justice  the  king's 
hands  were  brought  very  close  to  the  bishopric  by  the  presence 
of  his  judges  in  the  five  counties  touching  its  boundaries.  The 
kings  of  the  fourteenth  century,  moreover,  had  pretty  thoroughly 

1  Rot.  Lit.  Claus.,  8  Hen.  Ill,  i.  631-632. 
"^  a.  Hutchinson,  Durham,  i.  197. 

8  See  above,  §  17.  *  Plac.  de  Quo  War.,  604. 

^  "An  nescis  longas  regibus  esse  manus?"  Ovid,  Hero'id.  xvii.  166;  cf. 
Dialogus  de  Scaccario,  lib.  ii.  cap.  iv,  in  Stubbs,  Select  Charters,  219. 


§29]      COMPETENCE   OF  THE  PALATINE   COURTS.        211 

vindicated  their  sovereignty,  and  one  result  of  this  circumstance 
was  the  immediate  relation  of  the  sovereign  with  all  his  subjects, 
in  judicial  matters.  The  inhabitants  of  the  bishopric  were  the 
king's  subjects  also  in  the  theory  of  the  royal  courts,  which 
taught  that  in  the  dispensation  of  justice  the  king  was  supreme 
{dominus  superior)  over  the  whole  kingdom  and  did  justice 
to  all.i 

In  the  fourteenth  century  conflicts  became  more  frequent  and 
the  theory  of  law  more  defimte.  The  law  taught  that  within 
the  palatinate  the  Bishop  was  supreme  in  all  things  except 
matters  touching  the  king's  body,  or  unless  he  made  default 
of  justice.^  In  the  latter  case  a  writ,  known  from  its  opening 
words  as  quHl  face  droity  issued  in  course  to  the  Bishop.  In 
this  instrument  the  matter  of  complaint  was  stated,  and  the 
Bishop  was  enjoined  to  do  justice  so  speedily  and  fully  that 
the  king  might  hear  of  the  matter  no  more.^  If  this  produced 
no  effect,  a  writ  of  attachment  against  the  Bishop  might  be  pro- 
cured,* a  step  which,  as  we  shall  see,  set  in  motion  a  cum- 
brous and  sometimes  formidable  machinery.  This  device  was 
resorted  to  in  various  sorts  of  cases :  thus  a  man  asked  to  be 
released  from  prison  on  bail;  a  subject  of  the  king  complained 
that  his  opponent  in  a  suit  for  damages  had  fled  to  the  palati- 
nate ;  an  inhabitant  of  the  bishopric  had  been  disseised  by  the 
Bishop,  and,  unable  to  obtain  remedy  at  home,  applied  to  the 
king.^ 

The  working  of  this  process  is  illustrated  in  the  case  of  Geof- 
frey of  Hartlepool,  who  in  1305  was  sued  in  the  palatine  courts 
for  the  attornment  of  certain  rents  in  a  manor  in  the  bishopric. 
While  the  case  was  still  pending,  the  king  seized  the  tempo- 
ralities of  the  see,  and  the  case  was  continued  before  the  royal 
justices  in  Durham.  When  the  temporalities  were  returned  in 
1307  this  case  was  specially  reserved,^  but  later  at  the  demand- 

1  Abbrev.  Plac,  257  b. 

2  Year  Book  14  Edw.  II,  Hil.  424;  Rot.  Pari.,  2  Edw.  Ill,  ii.  14. 
8  Registrum,  ii.  921,  a.d.  1313;  cf.  Rot.  Pari.,  2  Edw.  Ill,  ii.  14. 
*  Year  Book  14  Edw.  II,  Hil.  424. 

s  Rot.  Pari.,  Edw.  Ill,  ii.  391  a;  Registrum,  ii.  1015-1016,  1030,  1032; 
Rot.  Fordham,  ann.  3,  m.  4,  curs.  32. 
®  Foedera,  ii.  pt.  i.  5. 


212     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

ant's  request  it  was  returned  to  the  Bishop's  court.  In  May, 
1 3 15,  on  the  tenant's  allegation  of  error,  the  record  and  process 
were  ordered  to  be  sent  to  the  king's  bench.  The  Bishop  did 
nothing,  and  under  the  form  known  as  pluries  the  writ  was 
repeated  in  June,  July,  and  October;  but  before  the  last  writ 
reached  Durham  the  Bishop  was  dead,  and  the  case  was  prob- 
ably settled  at  Westminster.^  From  this  affair  we  may  judge  of 
the  practical  value  of  an  appeal  to  the  king.  The  royal  courts 
were  busy,  and  the  bishopric  was  very  far  from  Westminster 
in  the  fourteenth  century.  Except  on  parchment,  therefore, 
the  king  was  slow  to  wrath  ;  and  the  Bishop  knew  many 
returns  to  a  royal  writ  besides  the  one  called  for  in  that 
instrument. 

We  have  been  dealing  with  a  case  in  which  the  Bishop  is 
alleged  deliberately  to  have  denied  justice;  he  might,  however, 
make  default  through  inability  to  supply  redress.  This  class  of 
cases  also  needs  illustration.  In  1337  Ralph  de  Nevill  brought 
an  action  in  the  palatine  courts  against  certain  persons  whom 
he  accused  of  having  broken  into  his  park.  The  defendants 
neither  appeared  nor  essoined  themselves,  and  in  due  course 
they  were  outlawed.  Nevill  then  represented  that  they  had  left 
the  palatinate  and  were  dispersed  through  various  counties  of  the 
kingdom.  On  this,  the  suit  was  sent  out  to  the  king's  justices 
in  Yorkshire,  with  a  royal  writ  directing  them  to  cause  the 
arrest  and  imprisonment  of  the  defendants  wherever  they  might 
be  found.  Nevill  supplied  the  justices  with  the  necessary  in- 
formation, the  defendants  were  apprehended,  and  the  suit  pro- 
ceeded in  the  royal  courts.^ 

Even  the  judgment  of  the  Bishop  himself  was  not  final,  for  an 
appeal  from  it  lay  to  the  court  of  king's  bench.  Errors,  as  we 
have  seen,  might  be  assigned  in  the  judgments  of  the  Bishop's 
justices,  and  in  this  case  the  plea  came  before  the  Bishop  him- 
self.2  Without  this  intermediate  stage  the  case  could  not  be 
drawn  into  the  royal  courts,  although  in  the  fourteenth  century 
an  unsuccessful  attempt  was  made  to  authorize  this  step  by 

1  Registrum,  ii.  1056-1058,  1068-1070,  1077-1079,  1087-1090,  1110-1113. 

2  Ibid.,  iv.  215-221.    The  case  is  fully  given  and  is  extremely  interesting. 
»  Coke,  Fourth  Institute,  cap.  xxxviii ;  see  above,  p.  184. 


§29]      COMPETENCE  OF  THt,   PALATINE  COURTS.         213 

legislation.^  When  a  writ  of  error  was  pending  before  the 
Bishop,  the  plaintiff  in  error  often  stimulated  the  action  of  the 
court  with  a  royal  writ  directing  the  Bishop  to  do  justice  or 
give  a  decision,  lest  the  king  draw  the  case  to  his  own  court.^ 
There  is  a  case  in  the  year  1341  which  well  illustrates  the 
whole  question.  The  plea  had  been  begun  by  a  writ  of  forme- 
don  before  the  Bishop's  justices.  The  tenant  pleaded  in  bar  the 
deed  of  the  demandant's  ancestor,  claiming  that  the  demandant 
had  assets  by  descent  in  York  and  Lincoln.  The  Bishop's 
justices  could  not  try  this  issue,  since  beyond  the  limits  of  the 
bishopric  they  had  no  jurisdiction,  and  accordingly  they  dismissed 
the  plea  (parole  without  a  day).  The  demandant  then  brought 
a  writ  of  error  before  the  Bishop,  who  reversed  the  judgment 
already  given,  on  the  ground  that  the  plea  should  have  been 
continued  by  adjournment,  and  gave  the  parties  a  new  day  be- 
fore his  justices.  This  was  tantamount  to  sending  the  case  from 
a  higher  to  a  lower  court,  a  thing  which  could  not  legally  be  done. 
On  the  assignment  of  this  error  in  the  Bishop's  judgment  the 
king's  writ  issued,  drawing  the  whole  case  before  his  justices. 
The  judges  showed  much  uncertainty  in  dealing  with  the  case; 
the  organization  of  the  palatinate  was  unfamiliar  to  them,  and  the 
statement  of  counsel  that  "  the  Bishop  is  as  king  there,  and  can 
adjourn  whither  he  pleases,  and  it  is  the  custom  there,"  was 
allowed  to  pass  without  question.^ 

This  kind  of  limitation  on  the  competence  of  the  palatine 
courts,  although  in  the  ultimate  analysis  it  may  be  referred  to 
the  royal  supremacy,  proceeded  directly  from  the  regular  process 
of  law.  There  was,  however,  another  kind  of  limitation  which 
was  derived  immediately  from  the  royal  prerogative.  Thus  the 
king  forbade  the  Bishop  to  allow  a  suit,  then  pending  in  the  pal- 
atine courts,  to  go  by  default  on  account  of  the  absence  of  the 
defendant;  and  even  the  essentially  hasty  procedure  of  an  assize 

1  Rot.  Pari.,  21  Edw.  Ill,  ii.  171  b;  Fitz-Herbert,  New  Natura  Brevium, 
fol.  20-21,  pp.  44-46. 

2  Registrum,  ii.  997-998,  1008-1009;  cf.  also  Rot.  Pari.,  2  Edw.  Ill,  ii.  14. 
«  Year  Book  14  Edw.  Ill,  Mich.  142-143.     Cf.  also  Ibid.,  15  Edw.  Ill, 

Hil.  364-367 ;  Fitz-Herbert,  Abridgment,  error  6,  fol.  329,  and  recorde  37, 
fol.  67. 


214     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

of  novel  disseisin  was  interrupted  and  suspended  for  some  time 
by  the  king's  certificate  that  the  tenant  was  sitting  in  parliament 
and  could  not  be  allowed  to  absent  himself.^  Even  in  so  serious 
a  matter  as  homicide  the  course  of  justice  might  be  checked  at 
the  king's  pleasure.  Thus  in  1322  the  Bishop  of  Durham  was 
forbidden,  until  further  notice,  to  molest  certain  persons  who 
had  killed  John  de  Eure  while  pursuing  him  as  the  king's  enemy.^ 
John  de  Eure  belonged  to  an  important  north-country  family, 
and  held  considerable  estates  in  Durham  and  Yorkshire.  He 
was  killed  at  Bishop's  Aukland  in  Durham,  and  the  king's  pre- 
cept seems  to  have  issued  on  the  understanding  that  he  was  con- 
cerned in  Lancaster's  conspiracy,  though  this  charge  proved  to  be 
unfounded.^  The  whole  affair  is  obscure,  and  there  is  no  light 
from  the  chroniclers ;  the  principle,  however,  is  clearly  developed, 
that  for  purposes  of  public  policy  the  king,  of  his  prerogative, 
might  suspend  the  course  of  justice  in  the  palatinate. 

In  matters  of  private  interest  also  the  king's  prerogative 
imposed  limitations  on  the  competence  of  the  palatine  courts. 
The  allegation  that  a  title  was  derived  from  the  crown  raised 
a  presumption  of  its  validity.  Thus  Edward  III  granted  a  manor 
within  the  palatinate  to  a  certain  R.  Afterward,  by  a  fine  levied 
in  the  palatine  courts  between  A  and  B,  A  recognized  B's  title 
to  the  manor  and  received  it  from  him  for  life,  to  the  exclusion 
of  R.  Thereupon  R  petitioned  the  king  in  parliament  to  provide 
him  a  remedy,  and  was  answered  that  he  should  have  the  king's 
charter  confirming  the  royal  grant,  and  that  no  one  might  ex- 
clude him  without  answering  at  the  common  law.* 

The  royal  prerogative  also  acted  negatively  as  a  limitation  to 
the  competence  of  the  palatine  courts.     Thus,  if  the  king  were 

1  Registrum,  946-947,  955-9S6. 

*  Calendar  of  Close  Rolls,  131 8-1323.  p.  430.  The  original  record  is 
very  brief  and  contains  nothing  that  can  not  be  found  in  the  calendar. 

*  Ibid.,  474,  599,  and  cf.  also  Ibid.,  379,  468,  614. 

*  Rot.  Pari.,  2  Edw.  Ill,  ii.  23  b.  See  also  the  interesting  case  of  Peter  de 
la  Haye,  in  1316  (Calendar  of  Close  Rolls,  1313-1318,  p.  360).  The  king's  in- 
terest was  involved  here,  because  the  manor  of  Streatlam,  which  Peter  sought 
to  recover,  was  a  member  of  the  seignory  of  Barnard  Castle ;  and  Barnard 
Castle,  owing  to  certain  particular  reasons,  was  at  that  time  in  the  king's 
hand  (see  above,  §  5,  and  cf.  Surtees,  Durham,  iv.  loo-ioi). 


§29]       COMPETENCE   OF  THE  PALATINE   COURTS.        21$ 

party  to  a  case  which  ordinarily  would  be  cognizable  only  before 
the  Bishop's  justices,  it  would  become  necessary  for  the  Bishop 
either  to  force  the  king  to  plead  in  the  Bishop's  court,  or  himself 
to  renounce  cognizance  of  the  case.  The  latter  alternative  the 
Bishops  never  willingly  adopted ;  hence  they  are  often  found  at- 
tempting to  force  the  king  to  plead  in  their  courts,  but  always, 
as  may  be  supposed,  without  success.  The  point  was  most 
often  raised  in  the  matter  of  advowsons.  During  vacancies  of 
the  see  the  king,  who  represented  the  Bishop  in  his  temporal 
capacity,  presented  to  the  Bishop's  livings  that  fell  vacant  before 
a  successor  was  appointed.  Now,  it  often  happened  that  the  king 
neglected  to  present  to  a  living  until  the  new  Bishop  had  received 
the  temporalities.  In  this  case  the  Bishop  would  decline  to  admit 
the  king's  candidate.  Then  the  king  would  bring  a  writ  of  quare 
impedit  in  the  royal  courts.  To  this  the  Bishop  would  make 
answer,  by  way  of  confession  and  avoidance,  that  the  king  indeed 
had  the  right  to  present  but  that  the  action  should  have  been 
brought  in  the  palatine  courts.^  Such  a  plea,  however,  was 
never  allowed.  Here  again  is  seen  the  point  with  which  we  are 
concerned,  namely,  the  inferiority  of  palatine  privilege  to  royal 
prerogative. 

We  may  now  state  our  results  with  respect  to  the  competence 
of  the  palatine  courts.  In  theory  all  pleas  arising  between  in- 
habitants of  the  palatinate,  and  all  torts  and  crimes  committed 
within  its  boundaries,  were  cognizable  only  by  the  courts  of  the 
palatinate,  because,  as  justice  Hillary  pointed  out,  the  king  might 
not  have  jurisdiction  in  a  place  where  he  could  not  try.^  In 
practice,  however,  this  complete  local  cognizance  was  restricted 
by  the  fact  that  no  court  in  the  palatinate  was  final,  and  that 
its  boundaries,  although  able  to  exclude  the  king's  justices,  were 
powerless  against  his  prerogative. 

We  have  seen  that  the  Bishop  of  Durham  was  as  king  in 

^  Registrum,  ii.  842-845,  948-949.  In  the  former  case  the  king's  counsel 
said  :  "  Quod  dominus  rex,  ratione  praerogativae  et  jurisdictionis  suae,  a  qua 
corona  hujusmodi  libertatis  primo  sumpserit  originem,  et  inde  dependent,  etc. 
[sic] ,  attachiari  non  debet  ad  placitandum  alibi,  quam  in  curia  sua,  coram 
seipso,  vel  justiciariis  suis." 

2  Ibid.,  ii.  921-922,  iv.  240;  Year  Book  17  Edw.  Ill,  Trin.  36. 


2l6     THE  PALATINE  AND  ROYAL   JUDICIARIES.    [Ch.  VI. 

his  province,  and  at  the  same  time  vassal  and  tenant  of  the  king 
in  England.  We  have  seen  also  that  the  bishopric  was  furnished 
with  an  adequately  developed  judiciary,  having  competence  over 
all  the  inhabitants  of  Durham,  and,  except  in  certain  special 
cases,  excluding  the  jurisdiction  of  the  crown.  We  have  thus 
before  us  the  problem  of  determining  the  relations  of  two  con- 
current and  sometimes  competing  jurisdictions.  A  moment's 
reflection  will  suggest  numbers  of  cases  in  which  the  courts  of 
the  palatinate  and  those  of  the  kingdom  would  find  themselves 
in  collision.  Take,  for  a  single  example,  the  matter  of  vouching 
to  warranty  in  the  court  of  one  jurisdiction  when  the  vouchee 
lived  in  the  other.  How  was  the  vouchee  to  be  produced  ? 
Similar  questions  arise  at  every  step  in  procedure  from  summons 
to  outlawry  or  execution  of  judgment.  The  range  of  possible 
aspects  under  which  the  difficulty  may  present  itself  is  very  great. 
The  simple  case  that  we  have  put  with  regard  to  vouching  to  war- 
ranty, a  process  so  important  in  medieval  law,  is  capable  of  a  sur- 
prising number  of  permutations.  These  would  constantly  arise 
in  the  counties  adjoining  Durham,  and  they  must  have  been  regu- 
lated by  some  ascertainable  rule.  So  too  with  other  difficulties. 
Our  task  then  is,  following  the  order  of  legal  procedure,  to  deter- 
mine so  far  as  possible  the  nature  of  the  difficulties  that  grew  out 
of  the  clash  of  the  royal  and  palatine  jurisdictions,  and  the  gen- 
eral principles  by  which  these  difficulties  were  adjusted.  We 
shall  find  that  at  first  the  theory  of  the  law  is  fluid ;  the  process 
of  crystallization  does  not  begin  until  the  fifteenth  century  is  well 
under  way. 

§  30.    Summons  and  Arrest. 

Beginning  with  the  process  of  summons,  let  us  see  how  it  was 
applied  to  the  Bishop.  It  is  clear  that  within  the  palatinate 
the  Bishop,  qud  king,  was  beyond  the  ordinary  process  of  law.^ 
He  could  not,  therefore,  be  summoned  to  answer  in  his  own 
courts.  Outside  the  palatinate,  however,  the  Bishop  of  Dur- 
ham, qud  feudal  tenant  of  the  king  and  landlord  in  various  un- 
franchised counties,  was  naturally  amenable  to  the  laws  of  the 

1  See  above,  §  7. 


§3o]  SUMMONS  AND  ARREST.  2\J 

realm.  But,  since  the  king's  officers  might  not  enter  the  palat- 
inate in  the  execution  of  their  office,^  how  could  the  Bishop  be 
produced  in  the  king's  court?  The  first  step  was  to  disregard 
the  palatinate  by  treating  the  Bishop  as  an  ordinary  feudal  ten- 
ant. This  action  could  of  course  have  reference  only  to  the 
Bishop's  considerable  estates  in  Yorkshire  and  Lincolnshire. 
Distress  on  these  lands  might  freely  be  levied.  Thus  in  the 
middle  of  the  thirteenth  century  the  abbot  of  S.  Albans  brought 
suit  against  the  Bishop  of  Durham  to  recover  the  advowson  of 
the  church  of  Overconscliffe  in  the  bishopric.  The  plea  was 
long  and  intricate  and  involved  the  purchase  of  many  costly 
writs,  by  means  of  which  it  was  sought  to  bring  the  Bishop  into 
court.  Finally  it  became  necessary  to  direct  the  sheriff  of  York- 
shire to  produce  the  Bishop  by  distraining  him  "  per  omnes  ter- 
ras suas."  2 

During  the  thirteenth  century,  as  has  been  already  noted,  the 
justices  thought  that  an  earl  palatine  might  be  forced  to  plead  in 
the  king's  court  with  respect  to  lands  lying  in  his  county  pala- 
tine,^ but  this  doctrine  seems  to  have  proved  impracticable.  In 
the  beginning  of  the  next  century  the  Bishop  granted  out  a  ward- 
ship in  the  palatinate  which  was  claimed  by  a  person  dwelling 
in  the  kingdom.  On  this  there  issued  to  the  sheriff  of  Lincoln  a 
writ  oi praecipe  quod  reddat  in  respect  to  the  Bishop  of  Durham, 
containing  the  usual  formula  "  summoneatis,  per  bonos  sum- 
monitores,  praedictum  episcopum,  quod  sit  coram  justitiariis 
nostris  apud  Westmonasterium  .  .  .  ostensurus  quare  non  fece- 
rit,"  etc.*     The  sheriff  of  course  proceeded  against  the  Bishop's 

1  Year  Book  45  Edw.  Ill,  Trin.  17,  and  cf.  Ibid.,  17  Edw.  Ill,  Trin.  36. 
The  contingency  of  the  Bishop's  merging  his  feudal  identity  in  his  character 
of  mitred  sovereign,  and  thus  defying  legal  process,  was  at  an  early  period 
provided  against  by  the  application  of  a  doctrine  of  capacities.  See  Pollock 
and  Maitland,  i.  508 ;  Stubbs,  i.  499. 

2  Abbrev.  Plac,  160  b;  Matthew  Paris,  Chronica  Majora,  vi.  329-332, 
340-341,  393-396.  For  a  similar  case  in  1269,  see  Northumberland  Assize 
Rolls  (Surtees  Soc),  201. 

8  Bracton's  Note  Book,  plac.  1127,  1213;  above,  p.  182,  note  2. 

^  Registrum,  ii.  967.  See  also  a  writ  of  venire  facias  to  the  sheriff  of 
Northumberland,  directing  him  to  produce  the  Bishop  of  Durham  in  the 
exchequer  at  Westminster  to  answer  regarding  the  will  of  his  predecessor, 
Anthony  Bek(Ibid.,  1054). 


2l8     THE  PALATINE  AND  ROYAL   JUDICIARIES.   [Ch.  VI. 

lands  in  Lincolnshire,  and  had  this  summons  been  disregarded 
the  law  would  have  taken  its  course  with  regard  to  these  lands. 
But  it  is  questionable  whether  the  Bishop  could  have  been  put 
to  exigent  or  outlawed  on  such  proceedings.  In  conclusion, 
then,  the  Bishop,  although  qud  king  he  was  above  the  processes 
of  the  law  in  Durham,  might  still,  qud  tenant-in-chief  of  the 
king,  be  summoned  to  the  royal  courts  to  answer  in  actions 
brought  by  persons  not  under  the  palatine  jurisdiction,  even 
though  such  actions  had  reference  to  lands  and  tenements 
lying  within  the  palatinate.  Summons  of  this  sort  was  en- 
forced by  distraint  on  the  Bishop's  lands  and  tenements  out- 
side the  palatinate.^ 

When  it  became  necessary  to  produce  an  inhabitant  of  the 
palatinate  in  the  royal  courts,  the  first  step  was  to  levy  distress 
on  any  lands  or  tenements  that  he  might  be  holding  outside  the 
liberty.  If  he  held  no  such  lands,  the  sheriff  could  do  nothing 
without  further  action  on  the  part  of  the  courts.^  This  action 
took  the  form  of  a  special  process,  made  in  the  name  of  the  king, 
to  compel  the  Bishop  to  produce  the  person  required.  At  one 
time  the  judges  doubted  whether  the  Bishop  might  be  used  as 
the  king's  servant  in  this  fashion  ;  but  this  doubt  gradually  van- 
ished, and  in  the  practice  of  the  fourteenth  and  especially  of  the 
fifteenth  century,  one  might  almost  say  that,  for  the  purpose  of 
producing  the  defendant  in  a  civil  action,  the  Bishop  was  re- 
garded as  standing  to  the  king  in  the  relation  of  the  sheriff  of  a 
county.^    The  distinction  here  implied  between  the  king  and  the 

^  It  should  be  remembered  that  this  process  refers  only  to  summons. 
The  recovery  of  lands  in  the  palatinate  was  a  very  different  matter,  and 
could  not  be  accomplished  in  the  royal  courts. 

^  "  Et  praedictus  R  .  .  .  et  omnes  alii  non  veniunt  nee  fuerunt  attachiati, 
quia  non  fuerunt  inventi  eo  quod  fuerunt  in  libertate  Episcopi  Dunelmensis:  " 
Northumberland  Assize  Rolls  (Surtees  Soc),  14,  A.  d.  1255.  Cf.  Ibid.,  195- 
197,  A.  D.  1269. 

*  "  The  king  can  not  command  him  [the  Bishop]  as  his  servant  to  make 
summons"  (Year  Book  17  Edw.  Ill,  Trin.  36).  It  was  said  by  justice 
Newton  that  the  lord  palatine,  in  producing  a  vouchee,  was  acting  as  the 
servant  of  the  king's  court  (Ibid.,  19  Hen.  VI,  Hil.  52,  and  cf.  33  Hen.  VI, 
Mich.  52).  At  a  much  earlier  time  —  although  the  case  is  not  strictly  analo- 
gous —  we  find  the  term  servant  applied  to  the  Bishop  in  the  following  con- 


§30]  SUMMONS  AND  ARREST.  219 

royal  courts  is  to  be  emphasized,  because  regular  judicial  writs 
would  not  issue  to  the  Bishop  ;  a  special  writ  from  the  king  was 
required. 

The  process  of  summons  in  the  thirteenth  century  consisted 
of  eight  stages,  and  it  was  necessary  to  exhaust  the  resources  of 
the  first  before  passing  to  the  second,  and  so  through  all  the 
eight.^  By  the  next  century  this  elaborate  and  cumbersome 
method  had  been  reduced  to  the  three  essential  measures  of 
summons,  attachment,  and  the  great  distraint.^  Bracton,  how- 
ever, knew  of  a  process  for  compelling  lords  of  franchises  to 
produce  their  men  in  the  king's  court,  which,  in  the  event  of 
persistent  contumacy,  resulted  in  the  confiscation  of  the  fran- 
chise.2  That  this  process  was  never  applied  to  the  liberty  of  the 
Bishop  of  Durham  may,  in  connection  with  other  facts  pointing 
in  the  same  direction,  be  taken  as  evidence  tending  to  show  that 
the  palatinate  was  placed  on  a  footing  different  from  and  supe- 
rior to  that  of  the  other  great  franchises  of  England.  The  elabo- 
rate thirteenth-century  process  of  summons  can  not,  for  lack  of 
material,  be  shown  in  its  application  to  the  palatinate,  although 
we  get  a  little  light  here  and  there.* 

In  the  fourteenth  century  the  material  at  our  disposal  becomes 
more  abundant  and  furnishes  several  cases  illustrating  the  point 
in  hand.  An  outline  of  one  of  these  will  serve  the  present  pur- 
pose. In  13 13  the  collectors  of  the  customs  at  Hartlepool  were 
directed  by  the  king  to  appear  in  person  at  the  exchequer  at 
Westminster  to  render  an  account  of  the  issues  of  their  office.^ 
The  collectors  disregarded  this  mandate  ;  whereupon  a  precept 

nection :  "  Episcopus  minister  ipsius  Regis  est  ad  ea  que  ad  regale  pertinent." 
(Abbrev.  Plac,  257  b,  printed  at  length  in  Registrum,  iv.  14-74)- 

1  Bracton,  fol.  439-441,  vi.  466-489. 

2  Pollock  and  Maitland,  ii.  591  ff. 
«  Bracton,  fol.  443,  vi.  496. 

*  Bracton's  Note  Book,  plac.  1096;  cf.  Coram  Rege,  i4Edw.  II,  roll  242, 

m.  60. 

5  Inasmuch  as  Hartlepool  was  in  the  palatinate,  one  may  wonder  at  the 
presence  there  of  royal  collectors.  They  were,  however,  appointed  during 
the  vacancy  that  followed  Bishop  Bek's  death  in  13 10,  and  are  now  required 
to  account  for  the  customs  "  de  tempore  quo  inde  habuerunt  custodiam  ex 
commissione  nostra." 


220     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

issued  to  the  sheriff  of  Northumberland  bidding  him  distrain  the 
contumacious  persons  by  all  their  lands  and  chattels  in  his  baili- 
wick. On  the  appointed  day  the  sheriff  returned  that  he  had 
made  no  execution  of  the  writ,  because  the  town  of  Hartlepool 
and  the  collectors  of  the  customs  there  were  within  the  liberty 
of  the  Bishop  of  Durham.  The  king  then  issued  a  new  writ, 
directing  the  Bishop  to  distrain  the  collectors  by  all  their  lands 
and  chattels  within  his  liberty  in  such  fashion  that  neither  they 
nor  any  one  else  might  come  at  the  property  so  distrained,  which 
was  to  be  held  until  the  king's  further  pleasure  was  made  known. 
The  Bishop,  meantime,  was  responsible  to  the  king  for  the  issues 
of  the  property  while  it  remained  in  his  hands.  This  was  the 
great  distress  following  on  the  summons  and  attachment  which 
the  sheriff  of  Northumberland  had  been  directed  to  make.  Even 
the  great  distress  was  not  effectual,  for  the  Bishop  returned  that 
one  of  the  parties  had  nothing  within  the  liberty,  and  that  the 
other  had  been  distrained  in  goods  and  chattels  to  the  amount  of 
6s.  Zd.  Two  months  later  the  writ  was  issued  again,  under  the 
form  alias^  and  the  Bishop  returned  that  the  same  person  had 
been  distrained  to  the  amount  of  lo^.  This  action  seems  to 
have  produced  the  desired  result,  for  we  hear  no  more  of  the 
matter.^ 

It  sometimes  happened  that,  instead  of  resorting  to  the  cum- 
bersome method  of  making  process  against  the  Bishop,  the  king 
simply  outlawed  the  defaulting  party  and  effectuated  this  out- 
lawry in  the  palatinate  by  giving  notice  of  it  to  the  Bishop.  This 
seems  to  have  been  the  most  common  method  in  the  late  fif- 
teenth and  early  sixteenth  centuries,  but  it  was  not  unknown 
at  an  earlier  period.  Already  in  1345  there  is  an  instance  of  it. 
Sir  Thomas  Metham  had  brought  an  action  before  the  king's  jus- 
tices against  Henry  Fox  of  Barnard  Castle  in  the  palatinate,  to 
compel  the  latter  to  render  him  an  account  of  certain  money 
and  rents.  Henry  did  not  appear  and  was  outlawed.  The  king 
notified  the  Bishop  of  the  outlawry,  and  directed  him  to  arrest 
and  imprison  Henry  if  he  should  be  found  within  the  palatinate, 
and  in  the  mean  time  to  take  possession  of  his  lands  and  goods.^ 

^  Registrum,  ii.  978-980,   993-994.     See  the  case  of  Lora  de  Harpyn, 
Ibid.,  851-853,  866-868,  884-886,  893-895. 
2  Rot.  i.  Hatfield,  ann.  i,  m.  i  dorse,  curs.  30. 


§30]  SUMMONS  AND  ARREST.  221 

In  1507  Ralph  de  Eure  of  York  and  Durham,  having  been  im- 
pleaded successively  by  the  king  and  certain  London  merchants, 
was  twice  outlawed  in  the  hustings  court  at  London.  Notice  of 
this  action  was  transmitted  to  the  Bishop,  and  the  outlawry  was 
put  into  effect  in  the  palatinate.^  This  step  was  accomplished 
at  that  period  by  sending  to  the  Bishop  a  royal  writ  declaring 
the  terms  and  nature  of  the  outlawry,  together  with  the  pains 
and  penalties  awaiting  those  who  gave  aid  to  the  outlaw,  and 
requiring  him  to  cause  its  proclamation  by  the  sheriff.^ 

Outlawry  decreed  in  the  kingdom  might,  then,  by  notification 
to  the  Bishop  be  rendered  effectual  in  the  palatinate.  But  does 
the  converse  of  this  proposition  hold  good  ?  Let  us  examine  our 
evidence.  In  the  case  of  Ralph  de  Nevill,  already  noticed,  the 
defendants,  having  been  outlawed  in  the  palatinate,  were  brought 
to  justice  in  the  king*s  courts,  which  thus  tacitly  admitted  the 
validity  of  the  decree.^  In  141 4  Robert  Masham,  a  monk  of 
Durham,  was  outlawed  in  the  county  court  of  the  palatinate 
of  Lancaster  for  non-appearance.  This  action  was  notified 
into  the  king's  chancery,  and  Masham,  having  submitted 
to  imprisonment  at  Lancaster,  was  pardoned  by  the  king.* 
In  1472  one  of  the  king's  justices  expressed  the  opinion  that 
"  outlawry  decreed  in  Durham  or  Chester,  which  do  not  derive 
from  parliament  but  are  by  prescription,  is  not  binding  in  the 
royal  courts."  ^  But  this  statement  must  be  taken  as  an  expres- 
sion of  the  general  drift  of  the  law  rather  than  of  its  actual  state ; 
for,  on  the  other  hand,  Edward  IV's  statute  against  liveries  makes 
a  special  exception  against  proceeding  to  exigent  and  outlawry 
in  counties  palatine  by  writs  or  informations  based  on  this 
statute,  the  implication  being  that,  where  no  such  reservation 
was  made,  the  extreme  measure  might  be  resorted  to.®     Prob- 

*  Rot.  i.  Bainbridge,  ann.  i,  m.  20  dorse,  curs.  68. 
2  Rot.  i.  Wolsey,  ann.  2,  m.  18,  curs.  72. 

^  Registrum,  iv.  215-221 ;  above,  p.  212. 

*  Scriptores  Tres,  App.  No.  clxxviii. 

*  Year  Book  12  Edw.  IV,  Mich.  16. 

^  8  Edw.  IV,  cap.  ii,  Statutes,  ii.  428.  See  also  I  Hen.  IV,  cap.  xviii, 
Ibid.,  118;  9  Hen,  V,  cap.  ii.  Ibid.,  204;  8  Hen.  VI,  cap.  x.  Ibid.,  246-248; 
Year  Book  19  Hen.  VI,  Hil.  1-2 ;  Dalton,  Office  of  Sheriffs,  380. 


222     THE  PALATINE  AND  ROYAL  JUDICIARIES,    [Ch.  VI. 

ably  the  law,  by  remaining  vague  on  this  point,  secured  to  itself 
a  very  desirable  latitude,  and  in  any  given  case  allowed  policy  to 
determine  whether  or  no  the  palatine  decree  of  outlawry  should 
be  recognized.  Finally,  although  the  palatine  courts  had  no 
power  to  enforce  their  decree  outside  their  jurisdiction,  they 
might  nevertheless,  if  the  outlaw  had  lands  in  the  palatinate, 
make  it  prudent  for  him  to  come  to  terms  with  them  lest  his 
lands  be  forfeited  from  himself  and  his  heirs.  Instances  in  which 
outlaws  surrendered  themselves  at  the  Bishop's  prison  and  sub- 
sequently purchased  their  pardons  are  not  uncommon.^ 

Returning  now  to  the  more  regular  legal  process,  we  find  that 
under  the  political  pressure  of  the  fifteenth  century  certain 
changes  had  been  introduced.  The  Lancastrian  government 
found  it  almost  impossible,  not  only  to  produce  political 
offenders  before  the  council,  but  even  to  serve  upon  them 
the  instruments  which  would  permit,  failing  their  attendance, 
of  their  being  outlawed.  In  1454-145  5  this  point  was  raised 
in  parliament,  with  particular  reference  to  the  disturbances 
in  the  northern  counties  created  by  the  Percies.^  An  act  was 
passed,  and,  contrary  to  established  custom,  transmitted  by 
the  king  directly  to  the  sheriff  of  Durham  for  proclamation. 
By  the  terms  of  this  act,  writs  and  letters  of  privy  seal  calling 
for  the  appearance  of  persons  before  the  council  were  to  be  pro- 
claimed by  the  sheriff  in  Durham,  and  such  proclamation  was  to 
be  taken  for  service  of  the  instrument,  which  was  then  to  be 
returned.  The  first  default  after  such  service  would  lead,  if  the 
offender  were  of  noble  estate,  to  the  forfeiture  of  all  offices,  pos- 
sessions, and  the  like ;  the  second  to  the  loss  of  estates,  name 
and  dignity  of  peerage,  and  place  in  parliament.^ 

In  the  sixteenth  century  the  ordinary  process  for  producing  a 
person  from  the  palatinate  differed  from  that  used  in  other  coun- 
ties only  in  the  fact  that  between  the  king  and  the  person  wanted 

^  Rot.  ii.  Hatfield,  ann.  34,  m.  18,  curs.  31  ;  Rot.  Fordham,  ann.  2,  m.  3, 
curs.  32;  Rot.  A.  Langley,  ann.  2,  m.  i,  curs.  34. 

2  Rot.  Pari.,  V.  394-396.  This  is  dated  "Hen.  VI,  anno  incerto"\  but 
it  belongs  to  the  year  1455,  for  the  year  32  Hen.  VI  is  mentioned  in  the 
text,  and  the  substance  of  the  act  is  incorporated  in  the  proclamation  on  the 
Durham  roll,  which  is  dated  1455. 

*  Rot.  V.  Nevill,  ann.  17,  m.  20-21  dorse,  curs.  46. 


§  30]  SUMMONS  AND  ARREST.  223 

there  were  two  steps  instead  of  one;  namely,  the  Bishop  and 
the  sheriff.  Thus  an  ordinary  writ  issued  to  the  Bishop  bidding 
him  to  direct  his  sherifE  to  secure  the  appearance  of  A,  instead 
of  immediately  to  the  sherifE  directing  him  to  produce  A.^  In 
a  real  action  in  the  royal  courts,  whether  the  land  lay  within  or 
without  the  palatinate,  the  presence  of  the  tenant  could  generally 
be  secured  by  awarding  the  demandant  judgment  by  default.^ 

In  respect  to  the  production  of  the  clergy  in  the  royal  courts 
Durham  did  not  differ  from  any  other  diocese  of  England.  The 
royal  officers  might  proceed  directly  against  the  clergy  through 
their  lay  fees  alone  ;  in  this  regard  the  clergy  did  not  differ  from 
laymen,  and  were,  within  the  palatinate,  subject  to  the  rules 
governing  lay  persons.  In  this  matter,  then,  it  is  necessary  to  dis- 
tinguish carefully  between  the  dual  capacity  of  the  Bishop  as  ordi- 
nary and  as  lord.  The  clerk  who  held  a  lay  fee  in  the  palatinate 
would  be  summoned  through  the  Bishop  in  the  manner  already 
described.  If  he  held  no  lay  fee,  a  well-recognized  process  of  law 
would  be  applied  to  the  Bishop  of  Durham,  as  to  any  other  dio- 
cesan of  England.  This  process  consisted  of  four  stages,  as  fol- 
lows: (i)  summons,  to  which  the  sheriff  returns  that  he  cannot 
distrain  and  that  the  clerk  will  not  give  pledges  for  his  appear- 
ance ;  (2)  mandate  to  the  ordinary  —  sometimes  to  the  arch- 
deacon —  directing  him  to  sequester  the  ecclesiastical  goods  of 
the  offender  and  to  produce  him  at  a  given  day  ;  (3)  writ  oi pone 
to  the  sheriff  bidding  him  place  the  Bishop  under  surety  to  pro- 
duce the  clerk  ;  (4)  distress  levied  on  the  Bishop's  barony. 
Here,  as  in  most  similar  processes,  the  same  writ  is  issued 
several  times,  under  the  forms  alias  and  pluries,  before  the  next 
step  is  taken.^  The  register  of  Bishop  Kellaw  shows  many 
cases  of  this  kind,  of  which  the  following  is  a  good  example. 

1  Rot.  ii.  Tunstall,  ann.  13,  m.  14  dorse,  curs.  78. 

2  Pollock  and  Maitland,  ii.  591  ;  Northumberland  Assize  Rolls  (Surtees 
Soc),  14-15,  A.  D.  1255.  A  case  involving  land  within  the  palatinate  would 
scarcely  come  into  the  royal  courts,  for  the  demandant  would  probably  bring 
his  action  in  the  palatine  courts,  where  he  might  hope  to  recover  the  land 
itself  and  not  merely  its  equivalent,  which  was  the  utmost  the  royal  courts 
could  procure  for  him. 

8  Bracton,  fol.  442b-443  b,  vi.  490-501. 


224     THE  PALATINE  AND  ROYAL   JUDICIARIES.   [Ch.  VI. 

In  13 12  an  action  was  pending  in  the  royal  exchequer  against 
the  executors  of  the  will  of  William  de  S.  Botolph,  formerly  rector 
of  Houghton  in  Durham.  The  sheriff  of  Northumberland  had 
returned  that  one  of  the  executors,  Robert  le  Clerk,  prebendary 
of  Lanchester,  had  no  lay  fee  by  which  he  might  be  distrained. 
On  this  a  writ  issued  to  the  Bishop  bidding  him  distrain  Robert, 
by  the  ecclesiastical  benefices  which  he  had  in  the  bishopric,  to 
appear  at  the  exchequer  on  a  certain  day.  The  Bishop  returned 
that  the  writ  had  reached  him  too  late  for  execution.^  Accord- 
ingly it  was  repeated  six  months  later,  and  this  time  another 
Durham  clerk,  Ralph  de  Holbech,  was  included.^  The  Bishop 
returned  that  he  had  sequestered  the  ecclesiastical  goods  of  the 
reluctant  executors;  but  as  this  step  failed  to  produce  the 
required  result,  in  July,  two  months  later,  a  writ  oi  pone  against 
the  Bishop  issued  to  the  sheriff  of  York.  Robert  le  Clerk 
seems  by  this  time  to  have  satisfied  his  opponents,  and  the  ap- 
pearance of  two  of  his  co-executors  was  now  demanded.^  The 
Bishop  proceeded  to  execution  on  the  ecclesiastical  goods  of 
Ralph  de  Holbech  to  the  amount  of  thirty-three  marks,  levied 
on  the  issues  of  his  prebend  in  the  collegiate  church  of  Ches- 
ter-le-Street,  the  amount  in  dispute  at  the  exchequer  being 
;^43  6s.  Zd.^  Hence  we  are  free  to  suppose  that  the  writ  of 
pone  had  its  effect.  But  justice  was  not  yet  satisfied,  for  in  De- 
cember the  order  for  distress  was  repeated,  under  the  form 
pluries.^  This  issued  again  in  October,  1314.^  In  the  middle 
of  November,  however,  Ralph  must  have  appeared  at  the  ex- 
chequer and  made  satisfaction;  for  toward  the  end  of  that 
month  the  king  directed  the  sheriff  of  Yorkshire  to  remove  the 
distress  on  the  Bishop's  lands,  and  the  Bishop  to  relax  the 
sequestration  of  Ralph's  ecclesiastical  property.'' 

We  have  seen,  then,  that  when  the  Bishop  of  Durham  was 
party  to  a  civil  action  his  presence  in  court  was  secured  by 
means  of  distress  levied  on  his  extra-palatine  lands  ;  that  the 
same  process  was  applied  to  the  lay  inhabitant  of  the  palatinate 

^  Registrum,  ii.  907-908.  ^  ibj^. 

8  Ibid.,  954-955-  *  Ibid.,  966-967.  *  Ibid.,  996-997. 

*  Ibid.,  1028-1029.  "^  Ibid.,  1032-1034. 


§  30]  SUMMONS  AND  ARREST.  22 S 

unless  he  had  no  such  lands,  in  which  case  the  Bishop  was 
directed  to  distrain  on  his  palatine  lands ;  and,  finally,  that  a 
clerk  having  lay  fee  in  or  out  of  the  palatinate  would  be  sum- 
moned as  a  layman,  but  otherwise  would  be  reached  through 
the  Bishop  by  a  well-known  process  culminating  in  distress 
on  the  Bishop's  barony.  Turning  now  from  civil  to  criminal 
procedure,  let  us  see  what  method  was  there  employed. 

In  the  case  of  criminals  who  eluded  arrest  the  English  law  of 
the  middle  ages  had  recourse  to  outlawry.^  But  this  method 
was  not  always  effective,  for  if  an  outlawed  criminal  or  a  person 
accused  of  crime  left  the  realm  there  was  of  course  no  means  of 
getting  him  into  court.  If,  however,  he  took  refuge  within  the 
palatinate,  what  course  would  be  followed?  We  must  distin- 
guish here  between  persons  accused  or  indicted,  and  persons 
actually  convicted,  of  crime ;  for  although,  in  point  of  fact,  un- 
willingness to  face  an  accusation  would  generally  be  accounted 
an  admission  of  guilt,  still,  according  to  the  arrangement  of  our 
discussion,  the  whole  of  criminal  procedure  lies  between  the 
accusation  and  the  conviction  of  a  person.  Therefore  since  we 
are  dealing  here  with  summons  and  arrest,  we  shall  confine  our- 
selves to  the  category  of  accused  persons. 

The  person  accused  of  a  crime,  then,  having  taken  refuge  in 
the  palatinate  beyond  the  reach  of  the  royal  officers,  would  be 
outlawed,  and  this  outlawry  would,  as  we  have  seen,  be  made 
as  effectual  in  the  palatinate  as  elsewhere.  From  a  very  early 
period,  however,  this  process  was  regarded  as  unsatisfactory, 
and  there  was  a  constant  tendency  to  attach  to  the  Bishop  some 
measure  of  responsibility  for  the  arrest  and  return  of  accused 
persons  who  had  taken  refuge  in  his  liberty.  In  1194  there  is 
a  case  illustrating  this  feeling.  A  knight  of  the  Bishop  of  Dur- 
ham was  appealed  of  rape,  and  the  Bishop,  being  required  to 
produce  him  in  court,  failed  to  do  so  ;  whereupon  it  was  held 
that  the  Bishop  should  be  summoned  to  Westminster  to  answer 
for  his  negligence.2  Again,  in  1204  the  king  notified  Philip, 
then  Bishop  of  Durham,  that  certain  persons,  having  been  put 
to  forfeiture  and  outlawry  in   the  kingdom  of   Scotland,  had 

1  Pollock  and  Maitland,  ii.  597. 
«  Rot.  Cur.  Reg.  (ed.  Palgrave),  6  Ric.  I,  i.  62. 
15 


226    THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

found  refuge  in  Holy  Island.^  The  king,  professing  himself  un- 
willing that  such  persons  should  find  security  or  shelter  in  his 
land,  directed  the  Bishop  to  take  them  wherever  found  in  his 
province,  and  to  retain  them  at  the  king's  pleasure.^ 

This  sentiment  seems  to  have  found  its  first  articulate  expres- 
sion in  the  Assize  of  Clarendon  ;  ^  it  was  repeated  in  a  severer 
form  in  the  statute  of  Westminster  I,  which  provided  that  felons 
were  to  be  pursued  as  well  within  franchises  as  without,  and 
that  lords  of  franchises  and  their  bailiffs  who  were  contumacious 
or  negligent  in  this  matter  were  to  suffer  respectively  confisca- 
tion of  the  franchise  and  imprisonment.*  This  legislation  did 
not  apply  to  Durham ;  no  royal  officer  might  enter  S.  Cuthbert's 
patrimony  in  the  execution  of  his  office.  Indeed,  the  very  evils 
which  it  is  here  sought  to  prevent  were  common,  and  —  to  use 
a  paradox  —  even  lawful  at  a  later  date. 

In  1 341  it  had  been  represented  to  the  king  and  the  Bishop 
that  it  was  a  common  practice  for  persons  who  had  committed 
crimes  in  the  counties  of  York,  Northumberland,  Cumberland, 
and  Westmoreland  to  defeat  justice  by  removing  to  the  fran- 
chise of  Durham,  where  the  king's  writ  did  not  run  ;  and  in  like 
manner  for  the  criminals  of  the  franchise  to  remove  to  the 
neighboring  counties.  In  this  way,  it  was  pointed  out,  criminals 
escaped  punishment  and  both  the  Bishop  and  the  king  were 
deprived  of  the  legitimate  profits  of  jurisdiction  and  the  benefit 
of  possible  forfeitures.  The  following  arrangement  was  accord- 
ingly made  by  the  king  and  the  Bishop  acting  in  common.  In 
the  case  of  a  felon  passing  into  the  franchise  from  any  of  the 
four  counties  named  above,  the  sheriff  of  the  county  in  question 
by  letters  patent  under  his  seal  of  office  was  to  notify  the 
sheriff  or  one  of  the  coroners  of  Durham  of  the  particulars  of 
the  crime  and  require  the  attachment  of  the  criminal.  After 
such  notification  the  sheriff  or  one  of  the  coroners  of  Durham 

*  An  island  off  the  coast  of  Northumberland,  near  the  mouth  of  the 
Tweed.  As  a  parcel  of  Islandshire  it  was  accounted  an  integral  part  of  the 
palatinate.     See  Raine,  North  Durham,  50  ff. 

2  Rot.  Pat.,  5  John,  41  b. 

^  See  §  ir,  in  Stubbs,  Select  Charters,  144. 

^  3  Edw.  I,  cap.  ix,  Statutes,  i.  29. 


§30]  SUMMONS  AND  ARREST.  22/ 

was  to  arrest  the  culprit,  and,  having  brought  him  at  the 
Bishop's  expense  to  the  nearest  boundary  of  the  franchise,  was 
there  to  deliver  him  to  the  sheriff  or  other  properly  authorized 
officer  of  the  county  in  which  the  crime  had  been  committed. 
Under  reversed  conditions  the  same  process  was  to  apply,  and 
the  officer  of  the  four  counties  would  conduct  the  offenders 
to  the  marches  of  the  franchise  at  the  king's  expense.  In 
case  the  officers  of  either  party  to  this  agreement  should  prove 
negligent  or  refractory,  writs  would  freely  issue  out  of  either 
chancery,  charging  them  to  perform  their  duty  under  grave 
penalties.^ 

Clearly,  this  was  an  experiment,  and  as  such  it  was  not  im- 
mediately successful.  Although  it  was  the  most  obvious  and 
logical  solution  of  the  difficulty,  it  was  dropped,  and  several  other 
suggestions  were  made  before  this  one  was  eventually  adopted. 
Thus,  in  1384,  the  commonalties  of  the  counties  adjoining 
Chester  and  Durham  represented  to  parliament  that  the  men 
of  these  privileged  districts  were  in  the  habit  of  making  raids 
into  those  counties  and  there  committing  various  crimes.  "  For 
these,"  runs  the  petition,  ''  no  punishment  is  appointed,  nor  for- 
feiture of  the  goods  and  chattels  which  they  have  in  the  county 
of  Chester  aforesaid,  by  reason  of  their  franchise."  The  peti- 
tioners then  pray  that  such  forfeiture  or  other  remedy  be  pro- 
vided, and  that  the  same  ordinance  be  extended  to  the  bishopric 
of  Durham.2  This  was  not  done,  and  the  matter  stood  over 
until  the  middle  of  the  next  century. 

In  1433-1434,  owing  to  the  disturbed  condition  of  the  coun- 
try and  the  constant  miscarriages  of  justice,  a  strong  effort  was 
made  to  obviate  this  difficulty  with  regard  to  franchises.  It 
was  provided  in  parliament  that  "  no  lord  nor  none  other  per- 
sone,  of  what  astate,  degree,  or  condicion  that  he  be,  shalle 
wyttyngly  resceyve,  cherysshe,  hold  in  household,  or  main- 
tene,  pilours,  robbours,  oppressours  of  the  poeple,  mansleers, 

1  Rot.  Claus.,  15  Edw.  Ill,  pt.  iii.  m.  9  dorse,  printed  in  Registrum,  iv. 
244.  ff. 

2  Rot.  Pari.,  8  Ric.  II,  iii.  201  a.  The  statute  i  Hen.  IV,  cap.  xviii 
(Statutes,  ii.  118),  applies  only  to  convicted  persons,  and  to  Chester,  not  to 
Durham. 


228     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

felouns,  outlawes,  ravysshers  of  wemene  ayenst  the  lawe,  un- 
lawfulle  hunters  of  forestes,  parkes  or  warennes,  or  any  other 
open  mysdoers,  or  any  openly  named  or  famed  for  suche,  tille 
his  innocence  be  declared."  ^  To  secure  the  enforcement  of 
this  measure  the  lords  in  parliament  took  a  personal  oath  to 
support  it ;  ^  and  it  was  further  provided  that  all  lords  whose 
liberties  excluded  the  king's  officers  in  the  execution  of  their 
office  should  be  commissioned  to  summon  from  their  liberties 
such  an  assembly  of  persons  as  might  seem  to  them  expedient,^ 
and  to  administer  to  these  persons  an  oath  to  abide  by  the  pro- 
visions of  this  statute  and  to  aid  in  executing  them.  These 
oaths  were  to  be  certified  into  the  royal  chancery.  Such  a 
commission,  together  with  the  tenor  of  the  act,  was  given  to 
the  Bishop  of  Durham  in  May,  1434.*  This  was  probably  not 
effective,  for  about  1466  the  king  wrote  anxiously  to  Bishop 
Booth  reminding  him  of  the  terms  of  the  act  and  the  personal 
responsibility  to  observe  it  resting  on  him  as  Bishop  of  Durham, 
and  directing  the  royal  letter  and  the  Bishop's  engagement 
publicly  to  be  proclaimed.^ 

None  of  these  experiments  succeeded,  but  it  was  not  until 
the  re-establishment  of  comparative  order  under  the  Tudor  dis- 
pensation that  the  reasonable  method,  suggested  in  1341,  was 
reverted  to.  Possibly  this  plan  was  either  too  reasonable  or  too 
modern  for  the  fourteenth  century,  and  was  then  regarded  as  an 
infringement  of  cherished  liberties  by  the  successors  of  Bishop 
Bury,  who   were   certainly   less  advanced    thinkers    than  that 

^  This  is  the  form  in  which  the  decree  is  inscribed  on  the  Durham  roll. 
Rot.  C.  Langley,  ann.  30,  m.  10,  curs.  36. 
2  Rot.  Pari.,  11-12  Hen.  VI,  iv.  421-422. 

*  "  Tales  quales  sibi  videbetur  expedire  ad  certem  diem  et  sub  certis 
penis  [venire  facere]." 

*  Rot.  C.  Langley,  ann.  30,  m.  10,  curs.  36.  The  terms  of  this  act  were 
also  sent  to  the  chamberlain  and  vice-chamberlain  of  Chester,  who  were 
commissioned  to  take  the  oaths  of  the  people  of  Chester.  See  Calendar  of 
Welsh  Records,  Recognizance  Rolls  of  Chester,  in  Deputy-Keeper's  Report, 
No.  xxxvii,  App.  ii.  135. 

^  Rot.  iii.  Booth  (undated),  m.  15,  curs.  50.  The  Bishop  of  Durham 
had  been  one  of  the  late  comers  at  parliament,  but,  like  the  rest  of  the  lords, 
he  swore  to  maintain  the  statute.     See  Rot.  Pari.,  ii  Hen.  VI,  iv.  421-422. 


§  30]  SUMMONS  AND  ARREST.  229 

Studious  prelate.  For  the  rest,  it  is  easy  to  understand  how  so 
orderly  an  arrangement  had  fallen  into  disuse  during  the  chaotic 
fifteenth  century.  At  all  events,  the  first  trace  of  the  revival  of 
this  scheme  is  in  1495,  when  two  persons  impeached  of  treason 
were  surrendered  in  the  manner  suggested.^  In  15 18  two  per- 
sons, arrested  on  suspicion  in  Durham  and  **  wanted  "  in  Ripon, 
were  handed  over  to  the  bailiff  of  that  liberty .^  In  1535  John 
Lawson,  indicted  of  murder  at  Pruddoe  in  Northumberland,  was 
delivered  to  the  sheriff  of  that  county.^  This  last  case  is  of 
considerable  interest.  The  king's  writ  recited  the  accusation 
and  the  fact  that  the  supposed  murderer  had  taken  refuge  in 
the  palatinate,  where  he  had  immediately  been  imprisoned  ; 
since  the  murder  was  done,  it  proceeded,  in  the  place  and 
county  aforesaid,  "  ubi  cognitio  rei  magis  et  melius  triatus  et 
probatus  fuerit  quam  infra  dictum  episcopatum,"  the  man  was 
therefore  to  be  delivered  by  indenture  to  the  sheriff  of  North- 
umberland. This  writ  was  transmitted  to  the  sheriff  of  the 
palatinate,  with  directions  to  put  it  into  execution. 

On  this  point,  then,  it  may  be  concluded  that  accused  per- 
sons taking  refuge  in  the  palatinate  in  order  to  avoid  prosecu- 
tion, could  not,  in  the  strict  theory  of  medieval  law,  be  forced 
to  return  to  the  royal  jurisdiction.  From  an  early  time,  how- 
ever, there  was  a  general  feeling  that  the  Bishops  were  respon- 

1  Rot.  iii.  Fox,  ann.  11  Hen.  VII,  m.  i,  curs.  62.  The  document  is  worth 
reproduction  :  "  This  indenture,  made  at  Beriebrig,  within  the  Bysshopprich  of 
Duresme,  the  xxiiii  day  of  Septembre,  the  xi  yere  of  the  reigne  of  oure  sove- 
reigne  lord  King  Harry  the  VII,  witnesseth  that  Sir  Rauff  Bowes  Knyghte, 
Shireff  of  the  said  Bysshopprich,  hath  delyvered  unto  Willyam  Conyers 
Esquyre,  Bailleyff  of  the  Fraunchise  of  Richmond,  John  Stapilton  and  John 
Skelton,  appeched  of  Treson,  safe  and  sound  in  their  bodyes  ;  he  to  convey 
them  unto  the  Shirreff  of  Yorkshyre.  In  witnesse  herof,  either  party  to  the 
partys  of  theys  indenture  or  enterchangably,  hath  set  to  theyr  sealys,  the 
day,  yere  and  place  abovesaid." 

2  Rot.  ii.  Ruthall,  ann.  10  Hen.  VIII,  m.  9,  curs.  71.  These  persons  had 
been  arrested  at  Darlington,  but  the  inquest  found  nothing  against  them. 
Since,  however,  they  were  notorious  thieves  and  robbers  within  the  liberty 
of  Ripon,  »*  by  the  commandement  of  my  lord  of  Durham,  upon  dute  maid  to 
his  lordship  for  the  deliveraunce  of  the  said  Henry  and  John,"  the  sheriff  of 
Durham  handed  them  over  to  the  bailiff  of  the  liberty  of  Ripon. 

*  Rot.  ii.  Tunstall,  ann.  5,  m.  5  dorse,  curs.  78. 


230     THE  PALATINE   AND   ROYAL   JUDICIARIES.    [Ch.  VI. 

sible  for  the  return  of  such  persons.  This  feeling,  in  which  the 
Bishops  concurred,  under  pressure  of  the  political  necessities  of 
the  fifteenth  century  crystallized  into  legislation,  the  weakness 
of  which  was  confessed  by  the  special  measures  taken  to  en- 
force it.  With  the  return  of  order  under  the  Tudor  despotism  a 
well  understood  system  of  extradition  was  established.  Finally, 
it  is  highly  probable  that  at  almost  any  period  the  crown 
would  have  been  able  to  put  sufficient  extra-legal  pressure  on 
the  Bishop  to  secure  the  arrest  and  return  of  any  notorious 
criminal.^ 

We  have  now  considered  the  question  of  summons  from  the 
point  of  view  of  the  royal  courts.  Shifting  our  ground,  let  us 
see  how  the  difficulties  already  noticed  were  met  in  the  palatine 
courts.  In  order  to  secure  the  presence  of  a  party  to  a  civil 
action  the  Bishop's  officers  could  not  go  beyond  the  attachment 
of  whatever  goods  and  chattels  the  party  might  be  holding 
within  the  palatinate,  but  a  cleric  would  probably  be  returned 
by  the  ordinary  or  by  other  spiritual  authority.  Graystanes  has 
a  story  of  two  monks  who  resisted  Bishop  Bek's  deposition  of 
prior  Hoton ;  the  new  prior  **  secured  their  attachment  in  York, 
accusing  them  of  having  stolen  the  goods  of  the  house,"  and 
the  men  were  finally  returned.^  The  palatine  courts,  then,  had 
no  means  of  enforcing  their  jurisdiction  over  persons  who  were 
outside  the  province ;  such  persons,  however,  might  be  and 
were  arrested  and  tried  if  tbey  ventured  within  the  bounds  of 
the  palatinate.^ 

Pleas  which  the  palatine  courts  were  alone  competent  to  try 
were  referred  to  them  by  the  royal  courts.  Thus  in  13 15  a  ship 
belonging  to  Adam  of  King's  Lynn  in  Norfolk  went  ashore  on 
the  coast  of  Durham.  Although  the  ship's  company  reached 
land  alive,  the  people  of  the  place  claimed  wreck  and  proceeded 

1  From  this  generalization  we  must  exclude  the  period  of  the  Wars  of  the 
Roses,  when  the  Bishops  for  obvious  reasons  generally  followed  the  for- 
tunes of  the  great  northern  houses  of  Percy  and  Nevill.  A  member  of  the 
latter  family,  it  will  be  remembered,  sat  at  Durham  from  1438  until  1457. 

^  Graystanes,  cap.  xxiv,  in  Scriptores  Tres,  Tj . 

^  Rot.  E.  Langley,  ann.  21,  m.  15,  curs.  38;  Rot.  iii.  Nevill  (undated), 
m.  19,  curs.  44. 


§3o]  SUMMONS  AND  ARREST.  23 1 

to  break  up  the  ship  and  carry  away  the  rigging  and  cargo. 
Adam  thereupon  complained  to  the  king,  and  a  writ  issued  to 
the  Bishop  directing  him  to  hear  the  case  and  to  do  justice  to  the 
parties.^  Pleas  relating  to  land  within  the  palatinate  were  in 
like  manner  referred  to  the  palatine  courts.^  Contentious  liti- 
gation, therefore,  of  which  the  palatine  courts  had  exclusive 
cognizance,  was  in  the  nature  of  things  secured  to  them.  On 
the  other  hand,  the  rule  that  the  Bishop  was  powerless  to  bring 
into  his  courts  any  one  who  was  beyond  the  territorial  limits  of 
his  franchise,  shows  one  striking  exception.  In  the  quo  war- 
ranto proceedings  of  1293  we  read  that  **  the  Bishop  of  Durham 
has  such  liberty  that,  if  any  of  his  men  should  be  arrested  in 
the  body  of  the  county  of  Northumberland  at  the  suit  of  any 
inhabitant  of  the  liberty  of  the  Bishop,  the  bailiffs  of  the  afore- 
said Bishop  shall  replevy  him,  so  as  to  have  him  at  the  march 
that  is  between  the  body  of  the  county  and  the  liberty  of  Dur- 
ham, in  a  certain  place  that  is  called  Holdenbourne,  and  there 
he  will  answer  to  the  suit  (^stabit  legt)!'^  This  arrangement 
worked  both  ways,  and  was  applicable  also  to  the  inhabitants  of 
Northumberland. 

We  have  now,  so  far  as  our  material  will  admit,  disposed  of 
the  matter  of  summons.  We  have  seen  how  the  royal  courts 
might  find  it  necessary  to  procure  the  attendance  at  their  ses- 
sions of  the  Bishop  of  Durham  or  one  of  his  subjects,  lay  or 
cleric ;  we  have  learned  by  what  means  this  end  was  accom- 
plished, and  have  observed  that  when  their  own  power  failed 
the  royal  courts  appealed  to  the  supreme  power  of  the  king  to 
do  justice  to  all  his  subjects.  On  the  other  hand  we  have  seen 
how  the  palatine  courts  might  find  themselves  in  a  like  predica- 
ment, and  how  and  to  what  extent  they  were  able  to  extricate 
themselves. 

1  Registrum,  ii.  1109;  below,  App.  ii. 

2  Calendar  of  Close  Rolls,  1313-1318,  p.  360. 
8  Plac.  de  Quo  War.,  604. 


232     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

§  31.    Voucher  to   Warranty. 

Closely  connected  with  the  subject  of  summons,  and  indeed 
essentially  another  aspect  of  it  although  arising  at  a  later  stage 
in  the  procedure,  is  the  matter  of  vouching  to  warranty.  When, 
in  the  course  of  an  action  in  either  the  royal  or  the  palatine 
courts,  persons  outside  the  jurisdiction  of  the  court  were 
vouched  to  warranty,  how  was  their  attendance  to  be  secured  ? 
Or  failing  that,  in  what  other  fashion  could  the  obstacle  be  sur- 
mounted }  The  rule  in  these  cases  may  be  stated  broadly  thus : 
if  the  difficulty  arose  in  the  palatine  courts,  the  record  and  pro- 
cess of  the  plea  were  sent  out  to  the  king's  court,  where  the 
vouchees  were  produced,  the  warranty  made,  and  the  plea  then 
returned  to  its  original  venue;  if,  on  the  other  hand,  the  plea 
had  been  begun  in  the  king's  court  and  a  subject  of  the  Bishop 
having  no  land  outside  the  palatinate  were  vouched  to  warranty, 
process  then  lay  against  the  lord  palatine  to  compel  him  to  pro- 
duce the  vouchee.  This  method,  it  will  be  observed,  is  a  depart- 
ure from  the  general  rule,  which  prescribed  that  issues  which 
for  lack  of  competence  could  not  be  tried  in  the  king's  court 
should  be  sent  into  the  palatinate  to  be  tried  there,  so  far  as  the 
single  point  at  issue  was  concerned. 

Bracton,  treating  this  matter  somewhat  academically,  makes 
the  question  turn  on  the  origin  of  the  franchise.  If  the  vouchee, 
he  says,  be  beyond  the  power  of  the  king,  the  voucher  shall 
have  no  help.  If,  however,  the  vouchee  be  in  a  franchise  where 
the  king's  writ  does  not  run  "  propter  dominum  regem  qui  sibi 
[/'.  e.  the  lord  of  the  franchise]  libertatem  concessit,"  process 
shall  be  made  against  the  lord  of  the  franchise  to  produce  him.^ 
In  the  estimation  of  the  medieval  law  Durham  was  county 
palatine  by  prescription,  and  accordingly  no  process  would  lie 
against  the  Bishop.  This  conclusion  does  not  tally  with  the 
facts,  but  the  interesting  point  thus  raised  does  not  seem  to 
have  been  considered  by  the  early  judges.  As  will  be  seen 
later,  the  practice  of  two  centuries  was  in  1457  confirmed  by  a 
clear  statement  of  the  rule  which  we  have  formulated. 

Turning  now  to  the  facts,  we  shall  do  well  to  consider  the 
1  Bracton,  fol.  2S3,  vi.  24-26. 


§31]  VOUCHER   TO    WARRANTY.  233 

details  of  one  or  two  important  cases.  In  1306  Odeliva  and 
others  brought  an  assize  of  mort  d'ancestor  against  Geoffrey  of 
Hartlepool  for  tenements  in  Hurcheworth  Brian,  in  the  county 
of  Durham.  The  parties  were  all  inhabitants  of  the  palatinate, 
and  the  suit  was  brought  in  the  court  at  Durham.  Geoffrey 
vouched  his  father  John,  who  warranted  him  and  vouched  Simon 
de  Mora,  also  an  inhabitant  of  the  palatinate.  Simon  warranted 
and  vouched  Aymer  de  Rocheford  and  others,  all  of  them  out- 
siders without  lands  or  tenements  in  the  jurisdiction  of  the  court. 
A  day  was  given,  and  Simon  was  left  to  produce  his  warrantors 
as  best  he  might.  On  the  appointed  day  the  warrantors  did  not 
appear,  and  the  demandants  prayed  for  judgment  by  default. 
On  this  Simon  produced  the  king's  writ  directing  the  Bishop  to 
send  out  the  record  and  the  parties  "  so  that  we,  having  finished 
the  aforesaid  plea  of  warranty  in  our  court  .  .  .  may  return  it  to 
you,  to  proceed  in  the  same  according  to  the  law  and  custom  of 
your  liberty,"  etc.  The  parties  appeared  in  the  king's  court, 
"  and  because  it  appeared  by  the  record  that  those  who  were 
vouched  to  warranty  were  extrinseci,  and  that  they  were  vouched 
by  the  help  of  the  court  of  the  lord  king  who  is  dominus 
superior  of  the  whole  kingdom,  particularly  when,  by  default  of 
any  one  else,  the  same  lord  king  is  called  to  aid,  therefore  "  the 
sheriff  of  Northumberland  was  directed  to  summon  the  war- 
rantors.i  This  practice  applied  only  to  cases  involving  freehold. 
There  are  also  cases  that  illustrate  the  working  of  the  system 
from  the  other  side.  At  first  the  justices  were  a  little  doubtful 
as  to  the  law.  They  felt  that,  if  the  vouchee  were  beyond  their 
jurisdiction  but  within  the  realm,  the  king  could  unquestionably 
cause  him  to  appear  ;  but  they  hesitated  about  the  method. 
Thus  it  was  said :  "  If  a  man  in  this  court  vouch  one  in  the 
county  of  Chester,  process  will  be  made  against  him  to  prove 
the  warrant,  for  the  king  can  do  anything  to  do  justice  to  the 
parties." 2     Even  as  late  as  1355  the  courts  still  showed  an  incli- 

1  Coram  Rege  34  Edw.  I,  Mich.,  printed  at  length  in  Coke,  Fourth 
Institute,  cap.  xxxviii ;  a  summary  is  in  Abbrev.  Plac,  256  a.  For  similar 
cases  see  Fitz-Herbert,  Abridgment,  voucher,  5,  18,  fol.  188,  189;  Year 
Books,  16  Edw.  II,  Trin.  479,  and  18  Edw.  Ill,  Pasch.  20. 

2  Liber  Assisarum,  8  Edw.  Ill,  27. 


234     THE  PALATINE  AND  ROYAL   JUDICIARIES.    [Ch.  VI. 

nation  to  vacillate  between  two  courses,  either  to  make  process 
against  the  lord  palatine,  or  to  proceed  directly  against  the 
vouchee.^  In  1457  there  is  an  authoritative  expression  of  the 
law  on  this  point  from  Sir  John  Fortescue,  who,  in  the  course 
of  delivering  a  learned  and  interesting  opinion,  took  occasion  to 
distinguish  between  the  franchises  of  Wales  and  the  counties 
palatine  of  Chester  and  Durham.  "  For,"  said  he,  **  if  one  vouches 
another  in  Chester,  summons  ad  auxiliandum  will  not  issue  in 
the  county  palatine,  but  a  special  writ  will  issue  to  the  lord 
of  the  franchise  to  make  process  to  summon  the  warrantor."  ^ 

Between  these  two  simple  aspects  of  the  matter  lie  some 
troublesome  variations.  Thus,  there  is  the  case  of  a  party  in 
the  palatinate  who  vouched  to  warranty  several  persons,  some 
of  whom  were  within  the  palatinate  and  others  outside  of  it.  On 
this  the  record  was  sent  out  to  the  king's  court,  and  the  voucher 
was  directed  to  sue  out  two  writs,  one  to  the  lord  palatine  to 
produce  the  vouchees  from  his  jurisdiction,  and  the  other  to  the 
sheriff  of  the  county  to  summon  the  others  in  regular  course. 
The  warranty  completed,  the  plea  would  be  sent  back  to  the 
palatine  court.  Two  reasons  are  assigned  for  this  splution  of 
the  problem :  the  ends  of  justice  are  more  speedily  and  con- 
veniently served  in  this  way;  and  it  is  deemed  more  fitting  that 
the  process  should  be  made  before  the  king's  justices  **  ut  in 
curia  magis  digna."  ^  The  first  is  a  matter  of  expediency,  the 
second  a  matter  of  sentiment. 


§  32.    The  Venue. 

The  question  of  venue  —  the  place  whence  the  inquest  should 
be  drawn  —  was  still  troubling  the  royal  courts  in  respect  to  the 
palatinate  as  late  as  the  middle  of  the  fourteenth  century.*  The 
nature  of  the  palatinate  —  a  district  from  which  the  king's  jus- 
tices could  not  summon  a  jury,  although  facts  might  be  laid 

1  Year  Book  18  Edw,  III,  Pasch.  20;  Fitz-Herbert,  Abridgment,  voucher 
5,  fol.  188. 

2  Year  Book  36  Hen.  VI,  33  ;  cf.  Ibid.,  19  Hen.  VI,  12. 
s  Ibid.,  49  Edw.  Ill,  Pasch.  9-10. 

*  Reeves,  English  Law,  ii.  410  £f. 


§32]  THE    VENUE.  235 

there  in  the  course  ot  a  plea  which  they  were  trying  —  added 
another  difficulty  to  a  matter  already  sufficiently  intricate.  As  a 
general  rule  the  venue  was  determined  by  one  of  two  conditions, 
by  the  fact  or  by  the  land :  in  other  words,  by  the  place  where 
a  fact  was  alleged  to  have  occurred,  an  instrument  to  have  been 
executed,  or  an  imprisonment  made  ;  or  by  the  place  where  the 
land  in  question  was  situated.^  If  now,  in  the  course  of  plead- 
ings in  the  king's  court,  either  or  both  of  these  matters  were 
laid  in  the  palatinate  —  where,  since  the  king's  writ  does  not 
run,  he  may  not  have  jurisdiction  ^ —  what  measures  would  be 
taken  to  secure  a  jury  competent  to  try  the  issue  ?  It  would 
be  rash  to  formulate  a  general  rule  in  this  matter,  for  the  sense 
of  the  courts  was  shifting  and  the  question  was  partly  regulated 
by  statute  ;  we  must  then  content  ourselves  with  following,  as 
best  we  may,  the  history  of  the  practice. 

In  the  thirteenth  century  the  solution  adopted  was  to  transfer 
the  cause  to  the  palatine  court,  which  summoned  an  inquest 
and,  having  determined  the  fact  in  question,  returned  the 
cause  to  the  royal  court.  Bracton,  enumerating  the  circum- 
stances under  which  proceedings  were  stayed  in  a  possessory 
assize,  says :  "  If  in  any  way  it  can  be  proven,  as  for  exam- 
ple that  such  an  one  were  born  in  another  county  where  the 
king's  writ  does  not  run,  let  the  justices,  by  the  advice  of 
the  court,  send  to  the  county  where  he  was  born  to  inquire  the 
truth  of  that  article  only.  When  the  truth  is  determined  let 
the  justices  proceed,  for  or  against."'^  Thus,  in  1314,  in  an 
action  on  an  instrument  bearing  date  at  Hereford,  imprison- 
ment was  alleged  at  Chester,  whereupon  the  cause  was  trans- 
ferred to  the  court  of  that  county  palatine  because  the  main  fact 
had  occurred  in  its  jurisdiction.'* 

It  was  very  early  discovered  that  the  fact  that  the  deeds 
alleged  occurred,  or  the  instruments  produced  bore  date,  at 
some  place  in  the  palatinate,  might  be  pleaded  in  bar  of  the 
plaintiff's  action.     The  law,  at  once  recognizing  the  manifest 

1  Reeves,  English  Law,  ii.  410  £f. 

2  Year  Book  17  Edw.  Ill,  Trin.  36. 
8  Bracton,  fol.  272  b,  iv.  266. 

^  Year  Book  8  Edw.  Ill,  Trin.  279. 


236     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

injustice  of  this  device,  evolved  a  method  for  avoiding  it.  The 
plea  was  disallowed  and  the  point  determined  by  an  inquest 
drawn  from  the  counties  adjoining  the  palatinate.  In  Geoffrey 
Fitz  Geoffrey's  case  occurs  what  may  well  have  been  the  very 
first  instance  of  this  practice.  In  that  cause  the  Bishop  of 
Durham's  jurisdiction  was  called  into  question  before  the  king's 
justices,  and  by  them  referred  to  a  body  of  jurors  composed  of 
knights  and  freemen  from  the  counties  of  York  and  Northum- 
berland. This  step  did  not  meet  the  requirements  of  the  case, 
and  a  writ  issued  a  latere  directing  the  Bishop  to  summon  twelve 
knights  from  his  own  Uberty  to  determine  the  matter.^  Obvi- 
ously this  was  an  experiment,  and  a  daring  one.  We  may  judge 
of  its  success  from  the  fact  that  it  was  not  repeated,  although  it 
was  spontaneously  suggested  again  two  hundred  years  later,  and 
was  then  argued  at  great  length.  The  jurors  who  testified  to 
the  nature  of  the  palatine  privileges  in  the  quo  warranto  pro- 
ceedings of  1293  came  from  Northumberland ;  ^  and  in  one 
of  Bishop  Bek's  numerous  quarrels  with  the  convent  —  this 
time  about  land  —  jurors  were  summoned  from  Northumber- 
land "because  the  men  of  the  bishopric  were  regarded  with 
suspicion  both  by  the  Bishop  and  the  prior."  ^ 

Two  or  three  instances  will  serve  to  show  the  kind  of  cause 
in  which  this  device  of  summoning  jurors  from  a  neighboring 
county  was  resorted  to.  In  1324,  in  an  action  of  debt  in  the 
king's  court,  the  defendant  refused  to  answer  to  an  obligation 
made  in  Chester,  averring  that  it  was  as  though  made  in  Ireland 
or  Durham,  and  that  one  was  not  bound  to  answer  to  obligations 
made  in  those  places.*  In  a  similar  action  in  1330  the  defend- 
ant pleaded  a  payment  made  in  Hartlepool;  but  the  plaintiff 
answered,  "  Hartlepool  is  in  the  bishopric  of  Durham,  from 
which  place  we  can  not  make  the  inquest  come.^ 

It  was  likewise  suggested,  as  another  solution  of  the  difficulty, 

^  Curia  Regis,  8  John,  roll  36,  m.  13  (Northumb.) ;  below,  App.  i. 
*  Plac.  de  Quo  War.,  603,  and  cf.  Northumberland  Assize  Rolls  (Surtees 
Soc),  312,  A.  D.  1278. 

s  Graystanes,  cap.  xxvi,  in  Scriptores  Tres,  82. 
4  Year  Book  18  Edw.  II,  Trin.  613. 
6  Ibid.,  3  Edw.  Ill,  Hil.  9-10. 


§  32]  THE   VENUE.  237 

that  on  an  instrument  executed  in  the  palatinate  one  should  first 
bring  an  action  in  the  palatine  courts,  since  they  alone  had  cog- 
nizance of  pleas  arising  from  contracts  made  within  their  juris- 
diction ;  then,  if  the  Bishop  failed  to  do  justice,  an  appeal  would 
lie  to  the  king.  This  was  in  an  action  brought  against  the  prior 
of  Durham.  We  do  not  know  what  course  was  pursued,  but 
the  case  shows  the  uncertainty  of  the  courts  on  this  point  in 
1320.^ 

In  1335  an  attempt  was  made  to  solve  the  problem  by  legis- 
lation. A  statute  enacted  in  that  year  recites  that  persons  have 
frequently  been  delayed  in  their  actions,  both  real  and  personal, 
because  "  a  release,  quit-claim,  or  other  special  deed,  made 
within  a  franchise,  within  the  bounds  of  the  realm,  where  the 
king's  writ  runneth  not,"  is  pleaded  in  bar.  Therefore  it  is  pro- 
vided that  when  such  instruments  are  so  pleaded  and  denied, 
although  they  bear  date  at  a  place  within  the  franchise  and  wit- 
nesses of  the  franchise  be  named  in  them,  still  process  shall  be 
awarded  in  the  county  where  the  suit  was  brought.  If  the  wit- 
nesses do  not  appear  when  the  great  distress  has  been  returned, 
the  court  shall,  notwithstanding  their  absence,  proceed  to  take 
the  inquest.^  This  arrangem.ent  is  good  so  far  as  it  goes,  but  it 
obviates  only  a  few  of  the  possible  difficulties.  In  cases  in 
which  an  instrument  executed  in  a  franchise  was  pleaded  and 
admitted,  as,  for  example,  by  way  of  confession  and  avoidance, 
the  rule  was  to  take  the  inquest  from  a  neighboring  county, 
and  for  this  purpose  a  writ  would  issue  to  the  sheriff  of  that 
county.^ 

The  case  also  occurred  under  reversed  conditions,  as  when  an 
action  was  brought  on  an  instrument  executed  in  an  unfran- 
chised district  but  having  reference  to  something  within  the 
palatinate.  These  cases  were  not  of  course  covered  by  the 
terms  of  Edward  Ill's  legislation,  but  it  was  contended  that 

1  Year  Book  14  Edw.  II,  Hil.  424. 

2  9  Edw.  Ill,  cap.  iv.  Statutes,  i.  271-272.  For  a  case  that  occurred 
before  the  statute,  in  which  a  release  made  in  Chester  was  pleaded  in  bar 
of  the  action,  see  Liber  Assisarum,  8  Edw.  Ill,  27;  Brooke,  Abridgment, 
jurisdiction  104,  fol.  53. 

8  Fitz-Herbert,  Abridgment,  visne  50,  fol.  181 ;  but  see  Ibid.,  No.  53. 


238     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

they  might  be  brought  under  the  equity  of  the  statute.  The 
common  practice,  however,  was  to  send  the  issue  to  be  tried  in 
the  palatine  court.  Thus,  in  1409,  an  action  of  debt  was  brought 
before  the  king's  justices  on  the  lease  of  a  prebend  based  on 
tithes  payable  to  the  cathedral  of  Durham.  The  lease  was  exe- 
cuted at  Fulham  in  Middlesex,  and  hence  the  question  of  venue 
arose.  The  court  was  divided  as  to  what  course  should  be  fol- 
lowed. Justice  Hankford  said :  *' If  the  issue  should  be  joined 
within  the  franchise  of  Durham,  and  it  could  not  be  tried  there, 
they  would  send  the  record  out,  and  we  would  try  it  and  send 
it  back  again.  In  like  manner,  ought  we  not  now  to  send  the 
record  to  the  franchise,  and  when  it  is  tried  they  will  send  it 
back  to  this  court  .^  "  Justice  Tirwhit  agreed  to  this,  and  added  : 
*'  We  have  often  sent  to  Lancaster  when  issue  had  to  be  taken 
of  something  in  the  palatinate."  ^  This  weight  of  opinion  prob- 
ably carried  the  day. 

Again,  in  1440  an  action  of  debt  was  brought  on  a  lease  of 
lands  in  Lancaster  while  the  instrument  bore  date  in  Middlesex. 
The  court  was  divided  as  to  whether  the  issue  should  be  sent  in 
to  be  tried  or  whether  an  inquest  should  be  taken  from  an  ad- 
joining county.  Justice  Newton  contended  for  the  latter  course, 
suggesting  that  the  case  came  under  the  equity  of  the  statute  ; 
but  Ascough  said  that  at  the  common  law  the  king's  justices 
were  free  to  send  to  a  county  palatine  to  have  anything  tried 
there,  that  the  statute  was  made  only  to  remedy  the  long  delays 
in  the  special  cases  it  enumerated,  but  that  "  all  other  issues  of 
things  done  in  counties  palatine  will  be  tried  there  as  before."  ^ 
This  was  probably  sound  law,  for  Brooke,  in  his  abridgment  of 
this  case,  notes  against  Newton's  contention  the  phrase,  "lex 
contra,  ut  mihi  videtur."^ 

Another  class  of  cases  generated  much  difficulty  in  this 
matter  of  venue.  These  required  the  determination  of  a  fact  or 
deed  alleged  to  have  occurred  or  to  have  been  done  within  a 
palatinate;  as,  for  example,  if  one  pleaded  that  the  conditions  of 
an  engagement  had  been  fulfilled  in  Durham,  and  the  issue  were 
made  up  on  a  traverse  of  this  plea.     Here  again  the  rule  was 

1  Year  Book  11  Hen.  IV,  40.  2  ibid.,  19  Hen.  VI,  12. 

3  Brooke,  Abridgment,  Cinke  Porte.s  8,  fol.  137. 


§32]  THE    VENUE.  239 

to  send  the  record  in  and  let  the  palatine  courts  try  the  issue 
and  afterward  certify  the  king's  justices.  This  rule,  however, 
was  not  established  without  question  ;  an  interesting  case  that 
came  up  in  1440  shows  in  how  fluid  a  state  the  law  still  was  on 
this  point. 

The  instance  referred  to  was  an  action  of  debt  on  an  obliga- 
tion. The  defendant  alleged  performance  of  the  conditions  of 
the  obligation  at  a  certain  place  in  the  county  of  Durham,  and 
issue  was  joined  on  the  plaintiff's  denial  of  the  performance. 
Three  courses  were  suggested  as  possible  :  ( i )  to  summon  the 
inquest  from  a  neighboring  county,  (2)  to  send  the  issue  to  be 
tried  in  Durham,  (3)  to  procure  the  attendance  of  a  panel  from 
the  franchise.  For  the  third  course  it  was  argued  that,  since 
process  would  lie  against  a  lord  palatine  to  compel  him  to  pro- 
duce a  vouchee,  by  a  parity  of  reasoning  similar  process  would 
lie  against  him  to  produce  a  body  of  jurors.  But  to  this  argu- 
ment an  objection  was  raised  on  a  point  of  law:  if  the  lord 
palatine  summoned  the  inquest,  he  would  necessarily  award  the 
vejtire  facias yVihich  must,  however,  issue  from  the  record.  This 
disposed  of  the  third  course.  Against  the  second  it  was  urged 
that  to  send  the  issue  to  be  tried  in  Durham  would  be  tanta- 
mount to  transferring  a  plea  from  a  higher  to  a  lower  court,  a 
thing  which  might  not  be  done.  This  objection  was  met  by  the 
answer  that,  although  the  record  might  not  be  sent  down  to  a 
lower  court  to  plead  a  plea,  it  might  nevertheless  be  sent  there 
to  try  an  issue.  It  was  then  contended  that  by  the  equity  of 
the  statute^  the  issue  should  be  tried  in  an  adjoining  county,  for 
otherwise,  if  the  jurors  gave  a  false  verdict,  the  party  would  be 
at  his  attaint  in  the  king's  court  for  a  thing  done  in  the  fran- 
chise. In  answer  to  this  Sir  John  Fortescue  observed  that  the 
suggestion  was  impracticable,  because  by  the  nature  of  the 
franchise  the  people  who  dwelt  in  Durham  were  exempt  from 
coming  outside  that  county  to  try  any  issue.  To  meet  this 
argument  an  attempt  was  made  to  establish  an  analogy  between 
the  franchise  of  Durham  and  the  city  of  London,  whose  citizens 
in  spite  of  their  high  privilege  were  still  under  certain  circum- 
stances obliged  to  serve  on  juries  ;  but  the  effort  failed.  An- 
1  9  Edw.  Ill,  cap.  iv,  Statutes,  i.  271-272. 


240     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

other  argument,  based  on  the  inferiority  of  the  palatine  courts, 
was  met  by  the  admission  of  their  obedience  to  the  king's  court 
in  all  matters  except  those  contrary  to  their  franchise.  In  the 
end  the  majority  of  the  court  seem  to  have  agreed  that  the 
present  case  was  not  covered  by  the  statute,  and  that  the  issue 
should  therefore  be  sent  in  to  the  county  palatine  to  be  tried 
there.^  In  a  later  case,  in  which  refusal  to  pay  was  alleged  in 
the  palatinate  of  Chester,  the  issue  was  also  sent  to  be  tried  in 
that  county.2 

Turning  now  to  those  cases  involving  the  title  to  land,  we  shall 
find  that,  subject  to  some  fluctuations  of  opinion,  the  tendency 
is  to  refer  the  issue  to  a  body  of  jurors  summoned  from  the  neigh- 
boring counties.  Thus  in  1337  A  brought  an  action  of  dower 
against  B,  who  answered  that  A's  husband  had  exchanged  cer- 
tain lands  for  others  lying  within  the  county  palatine  of  Durham 
and  belonging  to  B,  and  that  in  these  lands  A  had  her  dower. 
A  replied  that,  since  the  king's  writ  did  not  run  in  Durham, 
the  court  could  not  have  cognizance  of  land  there,  and  prayed 
judgment.  This  plea  was  disallowed ;  A  then  denied  that  she 
had  dower  in  the  lands  in  question,  and  on  this  ground  the  issue 
was  formed.  The  court  ordered  the  inquest  to  be  taken  "by 
the  people  of  Northumberland,  who  are  nearest  to  the  franchise 
of  Durham ;  as  has  often  been  done  before."  ^  When  the  cir- 
cumstances were  reversed,  and  the  possession  of  lands  and  tene- 
ments in  another  county  was  pleaded  in  abatement  of  a  writ 
brought  in  the  palatine  courts,  then  the  issue  was  sent  out  to 
be  tried  in  the  king's  court.*  This  complication  arose  in  con- 
nection with  other  and  less  privileged  franchises,  and  was  then 
disposed  of  on  the  analogy  of  the  course  pursued  when  a  tene- 
ment lay  in  two  unenfranchised  counties;  that  is,  a  double 
panel  was  returned,  by  the  bailiff  of  the  franchise  and  the  sheriff 
of  the  county  respectively,  and  from  this  body  the  jury  was 
made  up.^    This   process,  as  we  have  seen,  could  not  be  used 

1  Year  Book  19  Hen.  VI,  Hil.  52. 

^  Ibid.,  39  Hen.  VI,  Mich.  21-22.    "The  issue  is  tried  in  the  place  where 
it  is  alleged :  "  Fitz-Herbert,  Abridgment,  visne  18,  fol.  180. 
8  Year  Book  10  Edw.  Ill,  Trin.  41-42. 
*  Ibid.,  14  Edw.  Ill,  Mich.  142-144. 
^  Liber  Assisarum,  22  Edw.  Ill,  3. 


§  32]  THE    VENUE.  24 1 

where  Durham  was  concerned,  but  it  was  appHed  even  to  a 
franchise  so  highly  privileged  as  the  honor  of  Richmond  ;  this 
was  another  phase  of  the  distinction  between  the  palatinate  of 
Durham  and  even  the  most  favored  of  the  other  franchises  of 
the  kingdom.^ 

It  has  been  laid  down  as  a  general  rule  that  under  no  circum- 
stances could  the  king's  officers  take  an  inquest  in  the  palatinate, 
and  there  are  numerous  cases  in  which  the  courts  accepted  this 
conclusion.  The  statement,  although  strictly  accurate  so  far  as 
regards  the  theory  of  the  law,  needs  some  modification  in  the 
history  of  its  practice.  Theory  and  practice  have  at  the  best  of 
times  been  somewhat  unduly  sundered,  but  perhaps  never  more 
so  than  when  the  crown  of  England  was  freeing  itself  from  the 
trammels  of  feudalism.  When,  in  the  course  of  this  liberaliza- 
tion, the  king  encroached  on  the  privileges  of  a  franchise,  the 
courts  were  not  slow  to  formulate  some  high  theory  of  law  or 
sovereignty  to  support  his  action.  "The  king,"  they  said  in 
1280,  **  can  do  anything  to  do  justice  to  the  parties."  ^  By  such 
high-handed  dealings  it  happened  that  the  royal  officers  more 
than  once  took  inquests  in  the  palatinate. 

The  whole  question  was  brought  to  discussion  by  an  unusually 
flagrant  case  of  royal  encroachment  in  the  beginning  of  the 
fifteenth  century,  when  Cardinal  Langley  held  the  see  of  Dur- 
ham. The  Cardinal-Bishop  exhibited  a  petition  in  parliament, 
representing  that,  notwithstanding  the  well-ascertained  and 
frequently-acknowledged  liberties  of  the  church  of  Durham,  cer- 
tain persons,  by  color  of  a  commission  from  the  king's  chan- 
cery, had  taken  inquests  at  Hartlepool,  Norham,  Bedlington, 
and  other  places  within  the  franchise  of  Durham;  further- 
more, that  the  returns  of  these  inquests  had  been  transferred 
to  the  royal  chancery  by  a  royal  writ  of  certiorari^  although 
it  was  well  known  that  the  king's  writ  did  not  run  in  Dur- 
ham. The  Bishop  therefore  prayed  that  these  returns  be  re- 
moved from  the  chancery  and  cancelled,  and  that  the  rights  of 
the  Bishops  of  Durham  in  this  respect  be  fully  acknowledged. 

1  Year  Books,  7  Edw.  Ill,  Mich.  56,  and  7  Hen.  VI,  Trin.  40;  Fitz- 
Herbert,  Abridgment,  visne  14,  fol.  179. 

2  Liber  Assisarum,  8  Edw.  Ill,  27. 

16 


242     THE  PALATINE  AND  ROYAL  JUDICIARIES.    [Ch.  VI. 

In  the  pleadings  which  followed,  Sir  William  Eure,  the  king's 
counsel,  made  an  able  argument  denying  the  right  of  the  Bishops 
of  Durham  to  have  county  palatine  in  their  bishopric,  and  point- 
ing out  that  the  returns  of  many  inquests  taken  between  Tyne 
and  Tees  were  then  to  be  found  in  the  royal  chancery.  These  in- 
quests are  enumerated,  but  they  do  not  present  a  body  of  excep- 
tions formidable  enough  to  shake  the  stability  of  the  rule.  There 
are  thirteen  in  all,  ranging  from  the  tenth  year  of  Edward  I  to 
the  sixth  of  Henry  V,  but  four  of  them  were,  as  their  dates 
show,  taken  sede  vacante  and  hence  cannot  be  counted.  If,  then, 
during  a  period  of  nearly  a  century  and  a  half  the  Bishops  of 
Durham  could  complain  of  no  more  than  nine  infringements  of 
their  privileges  in  even  so  vital  a  matter  as  this,  they  must 
undoubtedly  be  reckoned  more  fortunate  than  the  lords  of  other 
franchises  in  England.  Despite  the  force  of  Eure's  argument, 
Langley's  petition  was  granted,  the  objectionable  returns  were 
ordered  to  be  removed  from  the  chancery  and  destroyed,  and  on 
this  and  other  points  the  Bishop's  palatine  rights  were  amply 
acknowledged.^ 

On  the  criminal  side  of  this  question  of  venue  the  rule  is  that 
the  place  where  the  offence  is  committed  determines  the  venue 
of  the  trial.  Thus  in  1427  Sir  John  Jonsone  of  York,  who  had 
been  found  guilty  of  collecting  at  Barnard  Castle  in  the  palat- 
inate an  assembly  of  evil-doers  armed  in  warlike  fashion  against 
the  peace  of  the  king  and  the  Bishop,  and  in  contravention  of 
the  ordinances  and  statutes  provided  for  these  cases,  was  par- 
doned by  the  Bishop.^  In  1436  Thomas  Reid  of  Welbery  in 
Yorkshire,  who  had  been  found  guilty  of  stealing  a  horse  at 
Durham,  was  likewise  pardoned  by  the  Bishop.^  A  case  that 
still  better  illustrates  the  point  is  that  of  Margaret  Baker,  a 
laborer  of  Newcastle-upon-Tyne  in  the  county  of  Northumber- 
land. About  1456  she  was  appealed  in  the  Bishop's  court  at 
Durham  of  certain  robberies  alleged  to  have  been  committed 
by  her  at  Gateshead,  a  town  of  the  palatinate  separated  from 
Newcastle  only  by  the  breadth  of  the  river  Tyne.     Margaret 

1  Rot.  Pari.,  11-12  Hen.  VI,  iv.  427-431. 

2  Rot.  E.  Langley,  ann.  21,  m.  15,  curs.  38. 
*  Rot.  C.  Langley,  ann.  30,  m.  10,  curs.  36. 


§  33]  JUDGMENT  AND  EXECUTION.  243 

was  arrested  and  imprisoned  at  Durham.  Before  the  justices 
of  gaol-delivery  she  pleaded  not  guilty  and  put  herself  on  the 
country.  She  was  however  found  guilty  and  sentenced  to  be 
hanged.^ 

§  33.    Jadgment  and  Execution. 

We  have  now  seen  how  the  difficulties  raised  by  the  im- 
munities of  the  palatinate  were  disposed  of  in  the  matter  of 
summons ;  we  have  seen  also  that,  even  when  the  parties  were 
produced  in  court  and  the  issue  formed,  these  immunities  might 
again,  in  the  questions  of  voucher  and  venue,  prove  an  obstacle 
to  the  course  of  justice;  and  we  have  noticed  how  even  these 
obstacles  were  surmounted  by  the  ingenuity  of  the  courts.  It 
remains  now  to  consider  the  final  stage:  when  judgment  has 
been  obtained  and  the  privileges  of  the  palatinate  are  found  to 
stand  in  the  way  of  execution,  what  then  is  to  be  done?  Real 
actions  in  this  relation  present  little  difficulty  ;  the  law  is  clear 
on  this  point :  if  you  wish  to  obtain  seisin  of  land  in  the  palat- 
inate you  must  bring  your  action  in  the  palatine  courts  and  not 
elsewhere,  for  it  is  definitely  stated  that  "  recovery  in  banco  of 
lands  in  Durham,  Lancaster,  and  Chester  is  void.'*^  If,  how- 
ever, you  will  be  content  with  an  equivalent  value,  you  may 
bring  your  action  in  the  king's  courts  and  there  obtain  ren>edy.^ 
The  justices  were  agreed,  for  example,  that,  if  a  man  were  surety 
for  another  to  keep  the  peace  and  the  second  broke  it,  and  if  the 
surety  had  land  in  Durham,  the  king  would  send  to  the  Bishop 
or  his  chancellor  to  make  execution  on  the  land.  * 

This  rule  against  the  recovery  of  realty  in  the  palatinate  shows 
a  striking  exception  in  the  matter  of  advowson.  "  The  king," 
it  was  held,  "  shall  have  a  quare  impedit  for  an  advowson  in  Dur- 
ham." ^  This  was  true  of  Wales  and  probably  of  other  franchises 
also.^    The  writ  was  a  royal  writ,  and  the  plea  was  of  course 

1  Rot.  iii.  Nevill  (undated),  m.  19,  curs.  44. 

2  Year  Book  9  Hen.  VII,  Mich.  12. 

®  Ibid.,  36  Hen.  VI,  33.    This  is  contained  in  a  dictum  of  Sir  J.  Fortescue. 
4  Ibid.,  I  Edw.  IV,  Mich.  9-10.     For  Chester,  see  Ibid.,  21  Hen.  VII, 
Mich.  35. 

^  Fitz-Herbert,  Abridgment,  quare  impedit  165. 
«  Year  Book  36  Hen.  VI,  33. 


244    THE  PALATINE  AND  ROYAL  JUDICIARIES.  [Ch.  VL 

heard  in  the  king's  courts  in  calm  disregard  of  the  Bishop's  per- 
sistent efforts  to  force  the  king  to  plead  these  cases  in  the  pala- 
tine courts.^  The  king  might  also  associate  himself  with  another 
person  in  an  action  of  quare  impedit.  This  principle  is  devel- 
oped by  the  action  brought  in  the  middle  of  the  thirteenth  cen- 
tury by  the  abbot  of  S.  Albans  to  recover  against  the  Bishop  of 
Durham  the  advowson  of  the  church  of  Overconscliffe  in  the 
palatinate.  The  disseisin  had  occurred,  it  was  alleged,  during  a 
vacancy  at  S.  Albans,  when  the  temporalities  were  in  the  hands 
of  the  king,  whose  interest  in  the  case  was  thus  enlisted.  When 
the  next  abbot  endeavored  to  present  to  the  church,  the  lord  of 
the  manor  of  Overconscliffe  brought  an  action  of  quare  impedit 
against  him  in  the  palatine  court.  The  abbot  took  judgment, 
but  the  Bishop  delayed  execution ;  whereupon  the  king  by  his 
writ  directed  him  to  see  that  judgment  was  executed,  lest  the 
complaint  again  come  to  the  king  and  he  be  moved  "  manum 
ad  hoc  aliter  apponere."  An  excuse  was  found,  but  in  due  time 
the  king  renewed  his  threat.  Finally  the  Bishop,  still  inert, 
was  summoned  to  Westminster,  there  to  answer  for  his  negli- 
gence; and  by  this  means  no  doubt  the  abbot  recovered  his 
advowson.2  This  kind  of  difficulty  was  by  no  means  uncom- 
mon, owing  to  the  fact  that  the  king  presented  to  all  churches 
in  the  Bishop's  gift  that  happened  to  fall  vacant  while  the  tem- 
poralities of  the  see  were  in  the  king's  hand.^ 

We  may  turn  aside  here  to  consider  for  a  moment  the  ques- 
tion of  the  recovery  of  stolen  goods  which  had  been  carried 
into  the  palatinate.  This  matter,  although  it  is  the  effect  of  a 
judgment,  is  not  in  all  strictness  the  execution  of  one ;  still  it 
may  appropriately  be  considered  here,  because,  as  in  the  mat- 
ter of  advowsons,  it  involves  the  recovery  of  the  specific  thing 
sought.  The  general  rule  was  that  goods  stolen,  forfeited,  or  mis- 
appropriated, which  in  the  defeat  of  justice  had  been  removed 
to  the  palatinate,  might,  if  the  king  had  any  interest  in  the 
case  (and  the  king's  interest  could  probably  always  be  secured 
by  the  use  of  the  quo  minime  clause  in  the  writ),  be  recovered 

*  Registrum,  ii.  843,  948-949. 

2  Ibid.,  991-992,  1042-1044,  1051-1052,  1060-1063,  1072-1075. 

8  Fitz-Herbert,  New  Natura  Brevium,  fol.  32. 


§  33J  JUDGMENT  AND  EXECUTION.  245 

through  the  Bishop.  Thus  in  13 14  a  company  of  merchants, 
having  put  out  from  Newcastle  with  cargoes  of  wool,  were  set 
upon  near  Scarborough  on  the  coast  of  Yorkshire  and  deprived 
of  their  ships  and  merchandise.  The  ships  of  their  assailants 
were  manned  in  part  by  sailors  of  the  royal  navy,  and  hence  the 
king's  honor,  if  not  his  interest,  was  concerned  in  the  case.  On 
the  complaint  and  suggestion  of  the  aggrieved  merchants  a  royal 
writ  issued  to  the  Bishop,  bidding  him  keep  watch  for  the  stolen 
wool  and  ships,  in  order  that,  if  they  were  found  within  the  palat- 
inate, they  might  be  seized  and  held  awaiting  the  king's  pleas- 
ure.^ Again,  in  13 19  a  ship  "manned  by  Scottish  rebels"  was 
captured  off  the  Yorkshire  coast  and  thus  became  royal  for- 
feiture. But  **  certain  malefactors  and  disturbers  of  the  peace  " 
made  off  with  the  ship  and  her  cargo,  which  they  carried  to 
Hartlepool  in  the  palatinate.  The  Bishop,  by  royal  writ,  was 
directed  to  attach  these  persons  to  appear  before  the  king  at 
York.  This  was  done ;  whereupon  another  precept  issued  com- 
manding the  Bishop  to  replace  the  goods  and  chattels  on  the  ship 
and  to  deliver  her  to  the  king's  messengers  sent  to  receive  her.^ 
In  1353  the  law  was  readjusted  by  statute,  and  after  that  time 
owners  of  ships  manned  by  English  subjects  might,  if  their  ships 
were  cast  ashore  without  technical  wreck,  recover  their  goods 
without  invoking  any  special  interest  or  favor  from  the  king.^ 
Merchants  foreign  and  native  freely  availed  themselves  of  this 
privilege,*  and  in  the  next  century  the  provisions  of  the  statute 
were  incorporated  in  a  treaty  with  Scotland.  Thus  in  1447  a 
ship  belonging  to  certain  Aberdeen  merchants,  and  laden  with 
goods  in  Flanders,  went  ashore  off  South  Shields  in  the  palatinate. 
A  part  of  the  cargo,  having  come  to  land,  was  seized  by  the  Bish- 
op's officers  ;  whereupon  the  merchants  in  their  petition  to  the 
Bishop  showed  that,  by  the  provisions  of  a  treaty  between  Eng- 
land and  Scotland,  in  cases  of  wreck  in  which  any  person  survived, 
such  goods  as  were  rescued  should  be  returned  to  the  survivor 

^  Registrum,  ii.  1025-1027. 

2  Calendar  of  Close  Rolls,  13 18-1323,  p.  62. 

3  27  Edw.  Ill,  cap.  xiii,  Statutes,  i.  338. 

*  Rot.  C.  Langley,  ann.  26,  m.  6,  and  ann.  27^  m.  7,  curs.  36.     These  cases 
are  summarized  below,  App.  ii. 


24-6     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

whole  and  entire,  —  barring  reasonable  expenses  in  collecting  and 
keeping  the  merchandise,  —  if  appeal  were  made  within  a  year 
before  the  justices  competent  in  the  place  where  the  goods  were 
found.  On  this  representation  the  Bishop  issued  a  commission 
of  oyer  and  terminer,  directing  that  the  parties  be  heard  and 
justice  be  done  in  the  case.^ 

We  come  now  to  the  method  of  executing  judgments  which 
for  their  satisfaction  required  a  money  payment.  These  natu- 
rally fall  into  several  classes,  determined  by  the  circumstances 
of  the  particular  cases.  The  first  class  comprises  cases  in  which 
a  judgment  has  been  obtained  requiring  a  money  payment  from 
a  person  having  lands  and  goods  within  the  palatinate  but  none 
outside.  The  rule  in  such  instances  was  to  procure  a  special 
writ  to  the  Bishop  directing  him  to  make  execution  of  the  judg- 
ment within  his  liberty.  If  the  Bishop  neglected  this  precept, 
process  would  lie  against  him,  at  least  in  theory,  up  to  the  ex- 
tremity of  confiscation  of  his  temporalities.  In  this  matter  there 
seems  to  have  been  but  one  rule  for  the  palatinate  and  the  other 
franchises  of  the  kingdom,  although  in  the  case  of  the  latter 
execution  of  the  judgment  was  usually  confided  to  the  bailiff  of 
the  franchise.  If  the  sheriff  returned  that  the  bailiff  had  done 
nothing  in  the  matter,  the  writ  non  omittas  propter  libertatem 
issued  to  the  sheriff,  authorizing  him  to  enter  the  franchise  and 
himself  execute  judgment.  If,  on  the  other  hand,  the  bailiff 
returned  that  he  had  made  execution  but  could  not  produce  the 
money  "  quia  non  inventi  emptores,"  then  the  sheriff  must  levy 
on  the  goods  and  chattels  of  the  bailiff  up  to  the  amount  in 
question.  But  if  the  bailiff  did  nothing  and  still  opposed  the 
action  of  the  sheriff,  then  the  sheriff  must  summon  a  sufficient 
body  of  the  freemen  of  the  county  and  proceed  by  force  and 
arms,  imprisoning  the  bailiff  and  attaching  the  lord  of  the  fran- 
chise to  appear  before  the  king's  justices  and  show  cause  why 
his  franchise  should  not  be  taken  into  the  king's  hand.^ 

1  Rot.  ii.  Nevill,  ann.  9,  m.  13,  curs.  43  ;  cf.  also  Calendar  of  Patent  Rolls, 
1461-1467,  pp.  489,  492,  552,  and  index  s.  v,  "Wreck." 

*  Fleta,  lib.  ii.  cap.  Ixvii,  §§  12-16;  Fitz-Herbert,  Abridgment,  execu- 
tion loi,  fol.  375 ;  Year  Books,  7  Edw.  Ill,  Mich.  56;  8  Edw.  Ill,  Hil.  la; 
15  Edw.  Ill,  Hil.  269,  Pasch.  161. 


§  33]  JUDGMENT  AND  EXECUTION.  247 

A  process  similar  to  this  was  once  applied  to  the  palatinate, 
but  under  circumstances  which  indicate  that  the  resulting  con- 
fiscation of  the  liberty  was  essentially  a  political  move,  car- 
ried on,  for  appearance  sake,  under  cover  of  the  law.^  It  cannot 
therefore  be  denied  that  this  method  of  executing  judgment  was 
theoretically  applicable  to  the  palatinate,  but  there  is  no  record 
that  it  was  ever  resorted  to  in  the  ordinary  course  of  law.  This 
tenderness  may  have  been  due  either  to  a  lack  of  provocation 
on  the  part  of  the  Bishops,  or  ,to  a  tendency  to  place  the  pa- 
latinate on  a  higher  footing  in  respect  to  immunities  than  that 
occupied  by  the  other  franchises  of  the  kingdom.     What  we 

1  Richard  Hoton,  prior  of  Durham,  who  had  been  elected  despite  Bishop 
Bek's  opposition,  resisted  the  latter's  attempt  to  exercise  the  episcopal  right 
of  visitation  over  the  convent.  The  quarrel  thus  begun  soon  broke  into  open 
violence.  Bek  deposed  and  imprisoned  the  prior,  and  terrorized  the  monks 
into  electing  a  creature  of  his  own.  Hoton  then  made  common  cause  with 
the  discontented  subjects  of  the  Bishop  who  were  preparing  to  resist  the 
further  development  of  the  Bishop's  temporal  sovereignty.  The  deposed 
prior  and  the  leaders  of  this  movement  determined  to  bring  their  grievances 
before  parliament.  They  bribed  the  royal  officers ;  but  the  king  was  also 
willing  to  check  the  growth  of  Bek's  independence.  In  January,  1301,  Hoton, 
having  escaped  from  prison,  was  in  the  parliament  at  Lincoln,  where  he  ob- 
tained leave  to  go  to  Rome.  But  his  mission  was  unsuccessful,  for  Bek  out- 
bribed  him  at  the  Curia.  Meanwhile  the  litigation  proceeded  at  home,  and 
Hoton  obtained  judgments  against  Bek  involving  heavy  damages.  Unable 
to  obtain  execution  otherwise,  Hoton  purchased  royal  writs  against  the  Bishop 
and  procured  the  king's  officers  to  be  sent  to  Durham  to  execute  them.  On 
reaching  Durham  they  were  imprisoned  by  the  Bishop.  This  act,  together 
with  the  imprisonment  of  the  prior  in  defiance  of  the  king's  letters  of  pro- 
tection, was  made  the  legal  ground  for  the  confiscation  of  the  liberty  in  1301. 
When  the  temporalities  were  returned  in  the  following  year  the  great  Bruce 
and  Balliol  forfeitures  were  withheld.  The  animus  of  the  king  in  this  matter 
can  scarcely  be  mistaken.  The  Bishop's  local  independence  had  reached 
such  a  point  that  it  threatened  to  make  him  dangerous  to  the  crown.  His 
hot-headed  indiscretion  gave  the  king  an  opportunity  of  restraining  this  inde- 
pendence under  the  form  of  law,  which  thus  became  in  the  king's  hand  an 
instrument  applied  to  the  achievement  of  a  political  end.  The  king  was 
further  moved  to  severity  by  the  fact  that,  in  the  parliament  of  Lincoln,  Bek 
had  openly  opposed  him  by  declaring  himself  in  favor  of  the  two  earls.  For 
details  of  this  affair,  see  Graystanes,  caps,  xxii-xxviii,  in  Scriptores  Tres, 
73-85;  Walter  of  Hemingburgh,  ii.  213-219;  Calendar  of  Patent  Rolls, 
1295-1301,  pp.  89, 97, 174,  578;  Abbrev.  Plac,  243,  257 ;  Registrum,  iv.  1-80, 


248     THE  PALATINE  AND  ROYAL  JUDICIARIES,   [Ch.  VI. 

know  of  the  history  of  the  north  country  in  general,  and  of  Dur- 
ham in  particular,  makes  the  first  hypothesis  extremely  improb- 
able ;  while  the  fact  that  we  have  already  seen  evidence  of  the 
tendency  implied  by  the  second  will  incline  us  the  more  readily 
to  accept  it. 

In  the  execution  of  judgments  obtained  in  the  royal  courts 
against  persons  resident  in  the  palatinate  the  greatest  attention 
was  naturally  paid  to  the  satisfaction  of  the  king's  debts.  Thus 
in  1 316  the  king  directed  the  Bishop  to  levy  to  the  amount  of 
ten  pounds  on  the  lands  and  goods  of  a  certain  Peter  de  Bolton. 
Peter,  who  owed  this  sum  to  the  king,  had  neither  lands  nor 
goods  outside  the  liberty.  The  Bishop  returned  that  Peter  was 
dead,  having  left  nothing  beyond  certain  property  to  the  value 
of  five  marks,  which  the  Bishop  had  seized.  Later  the  original 
writ  was  issued  again  under  the  form  aliaSy  and  it  appears  from 
the  return  that  the  money  had  not  yet  been  paid.  As  nothing 
further  was  done,  we  are  free  to  conjecture  that  the  king  suc- 
ceeded in  getting  his  five  marks.^ 

During  times  of  vacancy,  or  when  for  any  reason  the  tempo- 
ralities were  in  the  king's  hands,  the  debts  of  the  Bishop  to  the 
king  were  satisfied  by  a  requisition  on  the  episcopal  income 
made  directly  to  the  receiver-general.^  Whether,  in  the  four- 
teenth century,  process  would  lie  against  the  Bishop  to  execute 
a  judgment  obtained  by  a  private  person  against  a  palatine  sub- 
ject is  not  entirely  clear ;  at  any  rate,  we  may  be  sure  that  the 
successful  plaintiff  would  be  obliged  to  purchase  a  special  writ 
from  the  king,  for  even  in  the  next  century,  when  the  law  be- 
comes far  more  definite  in  respect  to  the  palatinate,  such  a  writ 
could  not  be  dispensed  with.  It  is  more  probable  that  in  such 
a  case  it  would  be  necessary,  or  at  least  prudent,  to  take  a  judg- 
ment in  the  palatine  courts,  which  for  its  execution  could  com- 
mand the  services  of  a  judicial  machinery  with  local  competence. 
Thus  we  read  that  "  in  the  case  of  execution  on  a  statute  staple 

1  Registrum,  ii.  1045-1046,  1091-1092.  Compare  the  case  of  Guiscard  de 
Charron,  very  similar  to  this  (Ibid.,  1076-1077),  and  also  that  of  the  friars 
minor  of  Oxford  (Ibid.,  1084-1085).  Although  no  judgment  was  passed  in 
the  last  of  these  cases,  the  process  is  valuable  for  comparison. 

2  Rot.  i.  Booth,  ann.  4  Edw.  IV,  m.  16,  curs.  48. 


§  33]  JUDGMENT  AND  EXECUTION.  249 

where  the  debtor  has  no  lands  except  in  Durham,  the  party 
may  pray  that  the  tenor  of  the  record  be  sent  to  the  county 
palatine,  and  he  shall  have  a  writ  to  the  Bishop  bidding  him  do 
judgment."  ^ 

The  second  category  of  cases  bearing  on  the  execution  of  judg- 
ment embraces  those  which  involve  an  evasion  of  justice ;  as, 
for  example,  where  a  man  against  whom  a  judgment  had  passed 
removed  to  the  palatinate  in  order  to  escape  execution  by  with- 
drawing himself  from  the  jurisdiction  of  the  royal  courts.  In 
these  cases  execution  would  be  made  through  the  Bishop, 
although  it  would  sometimes  be  necessary,  and  always  no  doubt 
advisable,  to  secure  a  judgment  in  the  palatine  courts.  Thus  in 
1385  Peter  Tyloff,  having  been  convicted  in  the  court  of  the 
marches  of  robberies  from  certain  Scotsmen  to  the  amount  of 
;£ii3  6s.  Sd.,  took  refuge  in  the  palatinate.  The  king's  writ  was 
then  sent  to  the  Bishop,  directing  him  to  seize  whatever  lands, 
tenements,  goods,  or  chattels  Peter  might  be  holding  within  the 
franchise,  and  to  deliver  them  to  John  de  Rennyll,  one  of  the 
keepers  of  the  marches. ^ 

An  earlier  case  (13 14)  —  although  it  is  not  strictly  in  point 
since  the  evasion  took  place  before  judgment  had  passed  —  is  of 
great  value  as  illustrating  the  practical  working  of  this  matter. 
Robert  de  Welle,  the  king's  bailiff  in  Tyndale,  appointed  as  his 
deputy  John  de  Derlyngton,  who  was  soon  afterward  carried  off 
and  imprisoned  by  another  John,  "  Scotus,  inimicus  et  rebellis." 
Robert,  at  the  instance  of  his  deputy,  ransomed  him  for  forty 
marks.  This  sum  he  paid  out  of  the  issues  of  his  bailiwick  of 
Tyndale,  and  John  took  an  oath  in  the  presence  of  witnesses  to 
reimburse  him  in  such  good  season  that  he  might  not  be  behind- 
hand with  the  king.     John,  without  doing  anything  to  redeem 

1  Year  Book  i  Edw.  IV,  Mich.  10.  See  also  Ibid.,  15  Edw.  Ill,  Pasch. 
161-162;  Fitz-Herbert,  New  Natura  Brevium,  fol.  132,  pp.  293-294  ;  Brooke, 
Abridgment,  statute  merchant  45,  fol.  241.  In  the  seventeenth  century  there 
is  a  case  in  which  the  plaintiff  appealed  to  the  house  of  lords  by  petition. 
The  defendant  had  taken  refuge  in  the  Bishop's  castle  of  Craik  in  Yorkshire. 
This  was  in  1641  ;  but  in  view  of  the  state  of  England  at  that  time  not  much 
importance  may  be  attached  to  the  case  as  a  precedent.  See  Hist.  MSS. 
Com.,  Reports,  iv.  93. 

2  Rot.  Fordham,  ann.  3,  m.  4,  curs.  32. 


250     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

his  oath,  fled  to  the  palatinate,  and  Robert  appealed  to  the  king 
for  help.  The  king  sent  to  the  Bishop,  directing  him  to  inform 
himself  of  the  matter  and  then  to  compel  John  by  every  possible 
legal  method  to  make  satisfaction.  Later,  by  a  second  writ,  the 
Bishop  was  bidden  to  summon  John,  to  make  inquiry  into  the 
matter,  and,  if  he  found  that  the  facts  supported  Robert's  story, 
then  to  seize  all  of  John's  property  in  the  palatinate  up  to  the 
amount  of  forty  marks.^  Whatever  process  might  in  theory  be 
employed  for  the  coercion  of  the  Bishop,  the  private  litigant  was 
probably  much  more  certain  of  achieving  his  purpose  if,  armed 
with  a  judgment  obtained  in  the  Bishop's  courts,  he  claimed  the 
services  of  the  Bishop's  executive  machinery. 

When  an  evasion  of  justice  occurred  in  a  purely  civil  cause 
the  process  was  somewhat  curious ;  it  is  well  illustrated  in  the 
following  case.  In  1385  the  king's  writ  came  to  the  palatinate 
addressed  to  the  Bishop,  his  locum  tenensy  or  his  justices,  direct- 
ing them  to  arrest  and  imprison  John  and  Gilbert  of  Newcastle 
if  they  were  found  within  the  liberty.  These  persons  were  bound 
to  John  Stot  of  Whitby  in  the  sum  of  ;£i5  135.  ^d.  contracted, 
by  statute  merchant,  two  years  previously  before  the  mayor  of 
Newcastle.  Inasmuch  as  the  appointed  time  for  repayment  had 
expired,  the  sheriff  of  Northumberland  was  directed  to  arrest 
the  debtors  ;  but  he  reported  that  they  could  not  be  found.  The 
aid  of  the  Bishop  was  therefore  invoked.  If  John  and  Gilbert 
could  be  found  in  the  palatinate  they  were  to  be  imprisoned  for 
three  months.  During  this  time  they  were  to  live  in  the  Bishop's 
prison  at  their  own  expense,  retaining  possession  of  all  their 
goods,  chattels,  lands,  and  tenements  at  their  free  disposition,  in 
order  that  they  might  satisfy  their  creditor.  If  at  the  end  of  the 
appointed  term  they  had  failed  to  do  so,  then  all  their  property 
was  to  be  made  over  to  John  Stot  to  be  held  freely  by  him  until 
he  had  obtained  payment  of  his  dues,  while  John  and  Gilbert 
were  to  remain  in  the  Bishop's  prison  on  a  diet  of  bread  and 
water  provided  at  John  Stot's  cost.  During  this  second  state  of 
coercion  John  and  Gilbert  might  sell  their  lands  and  pay  the 
debt ;  and  in  any  case  Stot  was  to  have  a  reasonable  allowance 
for  costs  and  expenses.  If  John  and  Gilbert  were  not  found  in 
1  Registrum,  ii.  1015-1016,  1023- 1024. 


§33]  JUDGMENT  AND  EXECUTION  251 

the  franchise,  or  if  they  proved  to  be  clerics,  the  Bishop  was  to 
seize  all  their  goods  and  deliver  them  to  John  Stot.^ 

By  the  sixteenth  century  this  somewhat  elaborate  process  had 
been  simplified.  Thus  in  1528  the  Bishop  was  notified  by  royal 
letters  that  a  certain  person  of  Northumberland  had  made  default 
to  his  creditor,  a  Londoner,  for  a  sum  of  money  due  on  a  statute 
staple.  The  Bishop  was  directed  to  order  his  sheriff  to  arrest 
the  debtor  and  carry  him  to  the  king's  prison,  presumably  in 
Newcastle,  where  he  was  to  remain  until  the  debt  had  been  satis- 
fied. In  the  mean  time  the  Bishop  was  to  cause  an  "  extent "  of 
the  offender's  lands  and  an  appraisement  of  his  goods  within 
the  palatinate  to  be  made;  the  property  was  to  be  seized  into 
the  king's  hand,  and  the  certifications  were  to  be  returned  by 
the  sheriff  into  the  chancery  of  Durham,  and  thence  by  the 
Bishop  into  the  royal  chancery .^  When  persons  not  resident 
in  the  palatinate  came  under  a  judgment  passed  in  the  palatine 
court,  execution  could  only  be  made  on  whatever  lands  or  goods 
the  defendants  might  be  holding  in  the  palatinate.  Thus  in  1402 
John  de  Hetworth  of  Ireland  and  John  Scruteville  were  sum- 
moned in  the  Bishop's  court  to  show  cause  why  they  had  not 
fulfilled  the  terms  of  a  recognizance  made  with  the  prior  of  Dur- 
ham some  years  earlier,  and  why  the  money  should  not  be  raised 
from  their  goods  and  chattels  in  Durham.  The  defendants  did 
not  appear ;  accordingly  the  prior  took  judgment  and  obtained 
execution.^ 

On  the  purely  criminal  side  of  the  question  of  judgment  and 
execution  two  contingencies  frequently  had  to  be  met.  A  person 
on  whom  sentence  had  been  pronounced  might,  if  he  could  escape, 
take  refuge  in  the  palatinate  ;  once  there,  he  might  either  trust 
to  the  immunities  of  the  district  to  prevent  his  recapture,  or  else 
avail  himself  of  the  privilege  of  sanctuary  at  Durham  or  Hartle- 
pool. How,  then,  in  either  of  these  cases  could  he  be  brought  to 
justice  }    The  first  step  was  to  outlaw  him  ;  then,  as  in  the  case 

1  Rot.  Fordham,  ann.  3,  m.  4,  curs.  32. 

2  Rot.  ii.  Wolsey,  ann.  20  Hen.  VIII,  m.  i,  curs.  T^.  For  similar  cases 
see,  Rot.  ii.  Tunstall,  ann.  15,  m.  17  dorse;  ann.  24  Hen.  VIII,  m.  3  dorse; 
ann.  27  Hen.  VIII,  m.  8  dorse,  curs.  ^2>. 

3  Rot.  Skirlaw,  ann.  14,  m.  26,  curs.  33. 


252     THE  PALATINE  AND  ROYAL   JUDICIARIES.   [Ch.  VI. 

of  a  criminal  at  large  in  the  palatinate,  the  Bishop  would  be  noti- 
fied of  the  outlawry  and  directed  to  proclaim  it  in  his  liberty. 
Thus  Humfrey  Nevill,  having  been  attainted  of  treason,  was 
confined  in  the  Tower,  from  which  he  made  his  escape  in  April, 
1464.  In  the  following  January  the  attaint  was  renewed  in  par- 
liament. In  June,  1469,  the  king  notified  the  Bishop  of  these 
facts  and  directed  him  to  proclaim  that  any  person  finding 
Humfrey  should  take  and  hold  him  as  a  rebel  and  one  out  of  the 
king's  protection ;  that  no  one  should  comfort  or  receive  him, 
but  that  he  should  be  arrested  and  brought  to  the  king  with  all 
possible  speed.^  On  the  receipt  of  such  a  precept  the  Bishop 
would  issue  a  writ  of  capias  utlagatum  to  his  sheriff.^  If  the 
criminal  were  taken  he  would  probably  be  handed  over  to  the 
royal  officers  and  the  delivery  would  be  recorded  in  an  indenture, 
as  was  done  in  the  case  of  accused  persons.  In  the  next  cen- 
tury the  Bishop's  privilege  in  this  field  was  but  scantily  respected. 
Thus  in  1534  Thomas  Cromwell  ordered  the  arrest  of  four  per- 
sons guilty  of  a  murder  in  the  county  of  York.  They  had  fled 
to  Scotland,  but  they  subsequently  returned  to  the  bishopric  of 
Durham,  "  where,"  says  the  record,  "  they  ride  about  at  their 
pleasure."  ^ 

On  the  other  hand,  that  is  when  a  person  convicted  of  some 
crime  in  the  palatinate  fled  beyond  its  limits,  the  palatine  courts 
were  powerless.  Thus  in  1279  John  Forwender  of  Dunkirk  and 
Elias  Potson,  a  Flemish  fisherman,  fought  in  the  streets  of  Har- 
tlepool, and  John  slew  his  opponent.  John  was  not  arrested  but 
fled  to  another  country  ;  hence,  when  the  matter  was  presented 
at  the  general  eyre  at  Sadberg  in  Durham,  there  was  nothing  to 
be  done  but  to  lay  a  fine  on  the  borough  of  Hartlepool.*  In  cer- 
tain cases  the  criminals  might  be  arrested  by  the  king's  officers 
and  returned  to  Durham  for  execution ;  but  this  course  was  at 
best  uncertain,  and  the  royal  officers  were  perhaps  little  disposed 
to   renounce  possession  of  a  criminal.     Thus  in   15 11   Bishop 

^  Rot.  Hi.  Booth,  ann.  11,  m.  10,  curs.  50;  cf.  Rot.  i.  Wolsey,  ann.  16 
Hen.  VIII,  m.  18,  curs.  72. 

^  Rot.  ii.  Wolsey,  ann.  7,  m.  i  dorse,  curs.  73. 

«  Calendar  of  Letters  and  Papers,  Henry  VIII,  vii.  No.  990. 

*  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 


§33]  JUDGMENT  AND  EXECUTION.  253 

Ruthall  complained  to  Wolsey  that  two  strong  thieves,  Gerard 
Truedall  and  Newbye,  who  had  been  ordered  to  be  sent  to  the 
bishopric,  where  they  had  committed  felony,  were  still  kept  in 
Carlisle  castle.^  In  1523  occurred  a  case  which  proves  that 
criminals  were  sometimes  returned  to  the  jurisdiction  of  the 
Durham  courts.  A  certain  Robert  Lambert  with  a  number  of 
companions  had  murdered  Christopher  Radcliff  at  Sherston  in 
the  bishopric.  Lambert  then  took  sanctuary  at  Tynemouth  in 
Northumberland.  On  this  Wolsey  wrote  to  Dacre,  the  king's 
lieutenant  in  the  north,  desiring  him  by  all  means  to  apprehend 
Lambert  and  to  deliver  him  into  the  hands  of  Sir  William  Bulmer, 
the  sheriff  of  Durham.^  This  was  in  1523  (June  12),  when  Wolsey 
held  the  see  of  Durham;  but  the  letter  was  unquestionably 
written  in  his  capacity  as  chancellor,  for  it  is  among  the  state 
papers,  not  among  the  Durham  records,  and  Wolsey  concerned 
himself  very  little  with  the  internal  affairs  of  the  palatinate, 
which  indeed  he  never  once  visited. 

Persons  convicted  of  crime  who  fled  to  the  palatinate  and  were 
unwilling  to  rely  on  the  general  immunities  of  that  district  might 
take  sanctuary.  Several  churches  afforded  this  security,  but  of 
these  the  cathedral  at  Durham  was  the  most  important.  The 
shrine  of  S.  Cuthbert  was  famous  throughout  England,  and 
annually  extended  its  protection  to  a  considerable  number  of 
criminals.  Free  access  to  the  shrine  was  regarded  by  the 
people  of  the  bishopric  as  a  valuable  right,  and  was  included  in 
the  charter  of  liberties  which  they  obtained  from  Bishop  Bek.^ 
Inhabitants  of  the  palatinate  who  had  committed  crimes  there 
and  subsequently  took  sanctuary  in  the  cathedral,  if  they  wished 
to  abjure  the  realm,  took  their  oath  before  the  Bishop's  coroner; 
by  him  they  were  handed  over  to  the  nearest  constable,  and  so 
passed  on  from  constable  to  constable  until  they  reached  the 
sea.*  This  method  seems  to  dififer  a  little  from  the  process 
obtaining  in  the  kingdom  with  regard  to  these  cases.^ 

1  Calendar  of  Letters  and  Papers,  Henry  VIII,  i.  No.  1924. 

2  Ibid.,  iii.  pt.  ii.  No.  3095.  ^  Registrum,  iii.  64. 
*  Sanctuarium  Dunelmense  (Surtees  Soc),  pp.  Ixx,  30-31. 

5  Rdville,  L'Abjuratio  Regni,  in  Revue  Historique  (1892),  1.  \*j  et passim \ 
Gross,  Select  Coroners'  Rolls  (Selden  Soc),  Introd.  xxv;  Pollock  and  Mait- 


254     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

In  this  connection  an  obscure  but  interesting  question  arises. 
If  a  person,  having  committed  a  crime  in  another  county,  were 
to  take  sanctuary  in  Durham  and  then  choose  to  abjure  the  realm, 
before  whom  would  his  oath  be  taken  ?  How,  in  fine,  would  the 
process  be  accomplished  ?  Would  the  authorities  of  the  cathedral 
hand  over  the  guilty  person  to  the  palatine  coroner  or  to  the 
royal  coroner,  or  to  the  former  for  transmission  to  the  latter  ? 
The  point,  as  we  have  said,  is  obscure.  The  Durham  sanctuary 
rolls  contain  no  case  of  this  sort,  although  some  light  comes  from 
the  record  of  a  thirteenth-century  case.  At  the  general  eyre 
held  at  Sadberg  in  1279  the  borough  of  Hartlepool  appeared  by 
twelve  burgesses  and  presented  that  Alicia  de  Lincolne  took 
sanctuary  at  the  church  of  S.  Hilda  in  Hartlepool  and  there  con- 
fessed herself  a  thief  and  abjured  the  realm  before  the  coroner, 
and  that  the  Bishop  had  her  chattels  to  the  amount  of  i  is.  ^Yzd} 
This  case  of  course  does  no  more  than  raise  a  presumption,  for 
we  can  not  be  sure  where  Alicia's  theft  was  committed,  or  even 
whether  she  were  from  another  county,  although  her  cognomen 
may  perhaps  imply  that  she  was  an  extrinseca.  Still,  even  in  the 
case  we  have  supposed,  the  probabilities  are  that  there  would  be 
no  extradition  but  that  the  criminal  would  be  disposed  of  by  the 
palatine  officers.  At  least  there  would  be  no  reason  for  returning 
the  guilty  person  to  the  royal  officers.  The  courts  would  have 
done  their  utmost,  and  it  would  remain  only  to  debarrass  the 
community  of  an  undesirable  member.  Policy,  in  the  middle 
ages  as  well  as  to-day,  demanded  that  this  should  be  done  as 
simply  and  swiftly  as  possible. 

The  privilege  of  sanctuary  seems  to  have  been  somewhat 
abused.  At  any  rate  it  could  not  stand  out  against  the  thor- 
oughness of  the  Tudor  government,  and  in  Henry  VIII's 
reign   it  was  closely  regulated  by  a  series  of   statutes.^    The 

land,  ii.  588-589.  This  device  of  passing  the  criminal  from  one  constable  to 
another  is  matched  in  the  kingdom  by  a  method  for  transferring  sanctuary 
men  from  one  privileged  place  to  another.  See  32  Hen.  VIII,  cap.  xii,  §  8, 
Statutes,  iii.  758. 

1  From  an  exemplification  on  Rot.  Matthew,  m.  16  dorse,  No.  33, 
curs.  92. 

«  22  Hen.  VIII,  cap.  ii.  Statutes,  iii.  319 ;  26  Hen.  VIII,  cap.  xiii,  Ibid., 
508-509;  32  Hen.  VIII,  cap.  xii,  Ibid.,  756. 


§  33]  JUDGMENT  AND  EXECUTION.  255 

privileges  of  the  cathedral  of  Durham  were  left  untouched, 
although  there  is  reason  to  believe  that  it  was  by  no  means  im- 
possible for  the  central  government  to  procure  the  surrender  of 
a  man  who  had  taken  sanctuary  at  Durham.  Just  before  the 
Pilgrimage  of  Grace  (September  28,  1536)  Sir  Francis  Bigod 
wrote  to  Cromwell  regarding  certain  of  his  servants  who,  although 
sanctuary  men  at  Durham,  had  been  handed  over  to  the  sheriff 
of  Yorkshire.  Bigod  asked  that  these  persons  be  returned  to 
sanctuary,  because  *'  Rafe  Ewere,  by  help  of  serjeant  Jennye, 
made  untrue  information  to  the  Chancellor,  whereupon  they  ob- 
tained his  letters  to  the  Bishop  of  Durham ;  "  he  claimed  that 
on  this  ground  *'and  according  to  grants  made  to  the  church 
of  Durham  "  they  should  be  restored,  adding,  "  this  would  win 
the  hearts  of  all  the  North,  especially  in  the  Bishopric,  adeo  sunt 
suo  dicati  Cuthberto."  ^ 

Clearly  the  Bishop  of  Durham  was  constrained  to  give  up  his 
sanctuary  men  on  the  chancellor's  requisition ;  but  whether  this 
compulsion  was  a  bit  of  Tudor  usurpation  or  a  right  of  the 
chancellor's  office  cannot  be  determined.  The  arrangement 
was  probably  necessary,  for  it  was  reported  to  Cromwell  in 
1534  that  the  great  number  of  liberties  and  sanctuaries  in 
the  northern  counties  seriously  embarrassed  the  administra- 
tion of  justice  there  and  consequently  diminished  the  king's 
revenues.  "  There  are  two  great  sanctuaries  in  Yorkshire," 
continues  the  anonymous  writer,  "  beside  the  bishopric  of  Dur- 
ham, where  all  murderers  and  felons  resort,  and  have  at  least 
100  miles  compass ;  "  and  he  closes  with  the  recommendation 
that  Durham  alone  should  be  sanctuary.^  Cromwell  went 
beyond  this  suggestion,  by  making  a  memorandum,  in  prep- 
aration for  the  meeting  of  parliament  in  1536,  "specially  to 
speak  of  the  utter  destruction  of  sanctuaries."  ^  This  end  he  was 
not  able  to  accomplish,  and  the  cathedral  of  Durham  retained  its 
privilege,  though  subject  to  a  restraint  heretofore  unknown. 

1  Calendar  of  Letters  and  Papers,  Henry  VIII,  xi.  No.  503.  The  ques- 
tion assumes  greater  importance  from  the  fact  that  sanctuary  men  might 
be  used  as  soldiers.  See  22  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  332 ;  MS. 
Cotton,  Calig.  B.  i.  41,  No.  71289. 

2  Calendar  of  Letters,  etc.,  vii.  No.  1669.  ^  lbid.,x.  No.  254. 


256     THE  PALATINE  AND  ROYAL  JUDICIARIES.   [Ch.  VI. 

§  34.    Some  Minor  Questions. 

One  aspect  of  the  legal  relations  of  the  palatinate  and  the  king- 
dom, not  indeed  directly  suggested  by  those  which  have  been 
occupying  our  attention  but  still  cognate  to  them,  must  now  be 
considered.  In  the  fourteenth  century  the  doctrine  was  laid  down 
that  what  is  done  in  a  franchise  is  not  of  record  before  the  king's 
justices.^  It  can  be  shown,  however,  that  this  rule  did  not  apply 
to  the  counties  palatine,  which  were  thus  again  differentiated 
from  the  other  franchises  of  the  kingdom.  The  interchange  of 
record  between  the  courts  of  the  palatinate  and  those  of  the 
kingdom,  not  to  plead  a  plea  but  to  determine  a  single  point 
beyond  the  competence  of  the  court  seised  of  the  plea,  would 
not  alone  be  enough  to  establish  the  point  in  question.  This 
relation  existed  also  between  the  royal  courts  and  those  of  pri- 
vate jurisdictions  far  less  privileged  than  the  palatinate.^  But 
the  discovery  that  a  fine  levied  before  the  Bishop's  justices  was 
successfully  pleaded  in  bar  of  an  action  in  the  king's  court, 
and  that  a  plea  begun  in  the  palatine  courts  was  continued  in 
the  royal  courts,^  tempts  us  to  assert  that  the  courts  of  the 
Bishop  were  as  much  of  record  as  those  of  the  king.  This 
would  be  going  too  far,  however;  for  if  the  record  of  the 
Bishop  were  by  any  chance  matched  against  that  of  the  king, 
the  former  would  unquestionably  give  way.*  With  this  impor- 
tant reservation,  the  palatine  courts  may  safely  be  termed  courts 
of  record. 

It  has  already  been  shown  that  the  legislation  of  parliament 
extended  to  the  palatinate  unless  there  were  special  provision  to 
the  contrary.^  It  was  admitted  that  the  palatine  courts  had  pos- 
sessed a  general  cognizance  of  pleas  from  a  time  prior  to  legal 
memory ;  but  the  question  was  raised  as  to  whether  they  might 
take  cognizance  of  an  action  created  by  statute,  and  therefore 
not  existing  at  the  time  of  what  might  be  regarded  as  their 

1  Liber  Assisarum,  8  Edw.  Ill,  8. 

2  Glanvill,  lib.  viii.  cap.  11 ;  Pollock  and  Maitland,  ii.  (^d. 

«  Bracton's  Note  Book,  plac.  1223,  a.  d.  1237;  Abbrev.  Plac,  306a; 
Registrum,  ii.  1056  ff. 

*  Rot.  Pari.,  2  Edw.  Ill,  ii.  23  b.  «  Above,  §  12. 


§34]  SOME   MINOR  QUESTIONS.  257 

grant  of  cognizance.  The  point  was  raised  in  a  case  in  which  a 
writ  of  maintenance  was  brought  in  an  action  of  trespass  pend- 
ing in  the  court  of  a  borough  in  which  the  mayor  and  burgesses 
had  cognizance  of  pleas.  It  was  contended  that,  since  the  action 
of  maintenance  did  not  lie  at  common  law,  and  since  the  statute 
by  which  it  was  given  was  subsequent  to  the  grant  of  cognizance, 
the  action  would  not  lie.  In  support  of  this  argument  it  was 
urged  that  the  same  was  true  of  counties  palatine  in  which,  by 
a  parity  of  reasoning,  no  action  created  by  statute  would  lie. 
But  the  entire  court  agreed  that  a  writ  of  maintenance  might 
well  be  brought  in  a  county  palatine.^  It  will  be  remembered 
that  the  new  methods  of  procedure  instituted  by  Henry  II  were 
introduced  into  the  palatinate  by  royal  charter,  issued  at  the 
request  of  the  Bishop's  subjects.^  Later,  actions  were  brought 
in  the  palatine  courts  under  the  provisions  of  the  statute  of 
laborers ;  ^  and  further,  in  Edward  IV's  statute  against  liveries 
it  was  provided  that  suits  and  actions  arising  under  this  legisla- 
tion might  be  tried  "  in  the  court  of  the  Bishop  of  Durham,  in 
the  County  Palatine  of  Durham  before  the  justices  there."*  It 
may  be  concluded  that,  from  the  time  when  new  actions  began 
to  be  created  by  statute,  litigants  in  the  palatine  courts  were 
free  to  avail  themselves  of  these  actions. 

The  position  of  the  palatinate  of  Durham  in  the  legal  ma- 
chinery of  the  kingdom  up  to  the  beginning  of  the  sixteenth 
century  may  well  be  compared  to  the  status  of  a  dependent 
foreign  country.  It  was  an  integral  part  of  the  realm  in  so  far 
as  it  was  dependent  on  the  crown  and  had  no  foreign  relations  ; 
but  for  legal  purposes  it  was  a  district  beyond  the  competence 
of  the  royal  courts.  Examples  of  such  an  anomalous  status 
were  at  hand  ;  in  the  thirteenth  and  fourteenth  centuries  paral- 

1  Year  Book  14  Hen.  IV,  Hil.  20. 

'^  See  above,  §  17. 

8  Rot.  Hatfield,  ann.  34,  m.  11,  curs.  31.  This  is  a  pardon  to  T.  Cox- 
howe,  who  did  not  appear  when  an  action  of  trespass  was  brought  against 
him  under  the  statute  of  laborers.  See  also  commissions  to  the  justices  to 
execute  this  statute.  Rot.  i.  Hatfield,  ann.  i,  m.  i  dorse,  curs.  30,  and  Rot. 
A.  Langley,  ann.  2,  m.  4,  curs.  34.  For  an  action  under  the  statute  5  Ric.  II, 
cap.  vii,  see  Rot.  v.  Booth,  m.  i,  curs.  53. 

*  8  Edw.  IV,  cap.  ii,  Statutes,  ii,  426-427. 

17 


258     THE  PALATINE  AND  ROYAL  JUDICIARIES,   [Ch.  VI. 

lels  were  frequently  drawn  between  Durham  and  Wales,  Ireland, 
or  even  Gascony.^  This  analogy,  however,  must  not  be  insisted 
upon  ;  indeed  it  broke  down  altogether  under  the  keener  analysis 
of  the  fifteenth-century  lawyers.  Still,  since  it  was  precisely  in 
the  fifteenth  century  that  the  law  with  regard  to  the  palatinate 
began  to  crystallize,  it  will  be  better  to  return  to  the  figure  of 
parallels,  which  may  be  supposed  rapidly  to  diverge  at  that 
period.  Even  in  the  fifteenth  century  justice  Newton  urged 
that  "  Gales  et  county-paleis  sont  tout  d'un  nature."  ^  But  in 
answer  to  this  assertion  it  was  shown  that  the  record  was  not 
sent  into  Wales  to  be  tried,  for  the  issue  might  be  taken  in 
the  adjoining  county ;  and  further  that  to  the  sheriff  of  that 
county  the  writ  issued  for  the  purpose  of  summons  or  execution. 
A  subtler  distinction  than  this  was  taken  on  the  point  of  origin. 
Wales,  Gascony,  and  Calais,  said  the  lawyers,  were  added  to  the 
crown  of  England,  but  the  counties  palatine  proceeded  out  of 
it,^  This  nicety  was  pushed  to  the  point  of  differentiating  be- 
tween Chester  and  Durham,  which  were  held  to  possess  their 
privileges  by  prescription,  and  Lancaster,  which  received  them 
by  act  of  parliament.*  The  distinction  between  the  palatinates 
and  Wales  was  stated  with  great  acumen  and  clearness  in  an 
admirable  opinion  delivered  in  1458  by  Sir  John  Fortescue,  too 
long  unfortunately  to  be  quoted  here.^ 

Thus  all  through  our  period,  from  the  Norman  Conquest  until 
the  practical  extinction  of  the  palatinate  in  1536,  the  relations  of 
the  two  legal  systems  were  fluctuating  and  ill-defined,  although 
showing  a  perceptible  drift  toward  the  extension  of  royal  justice 
at  the  expense  of  the  palatine  immunities  and  privileges.  Defi- 
nition involves  limitation,  and  the  work  of  the  fifteenth-century 
lawyers  was  to  define  the  legal  privileges  of  the  palatinate, 
and  thus  to  prepare  the  path  for  the  sixteenth-century  legis- 
lators, who  swept  them  away.     The  great  change  came  with 

^  Calendar  of  Close  Rolls,  1313-1318,  p.  30;  Ibid.,  1318-1323,  p.  522; 
Liber  Assisarum,  8  Edw.  111,27;  Year  Book  10  Edw.  III,Trin.  41-42;  Rot. 
Pari.,  5  Ric.  II,  iii.  119. 

2  Year  Book  19  Hen.  IV,  Mich.  12. 

8  Ibid.,  21  Hen.  VII,  Mich.  33-34. 

*  Ibid.,  19  Hen.  VI,  Mich.  12.  ^  ibid.,  36  Hen.  VI,  33. 


§35]  THE   COUNCIL   OF  THE  NORTH,  259 

the  statute  of  1536^  and  with  the  erection  in  the  next  year  of 
the  Council  of  the  North.  This  body  drained  all  life  out  of  the 
palatine  judiciary  by  practically  assuming  the  entire  adminis- 
tration of  justice  in  the  northern  counties.  Some  attention  must 
be  given  therefore  to  the  conditions  that  led  to  its  erection  and 
to  its  relations  with  the  palatinate. 


§  35.    The  Council  of  the  North  and  the  Palatine  Judiciary. 

The  plan  of  governing  the  north  of  England  by  means  of  a 
royal  lieutenant  and  local  council,  vested  with  very  considerable 
powers  from  the  privy  council,  had  been  formed  before  the  Pil- 
grimage of  Grace.  In  1522  the  condition  of  the  borders  called 
for  immediate  attention,  and  in  February  of  that  year  a  secret 
council  was  organized  and  arrangements  were  made  to  send 
down  a  royal  lieutenant  in  the  summer.^  This  plan  of  govern- 
ment by  a  lieutenant  and  council  continued  until  1525,  when  a 
slight  modification  was  made.^  This  consisted  in  placing  the 
north  under  the  nominal  control  of  the  king's  natural  son,  Henry 
Fitz  Roy,  whose  council  carried  on  the  actual  work  of  adminis- 
tration. Henry  was  created  duke  of  Richmond  and  appointed 
the  king's  lieutenant-general  north  of  Trent.*  The  duke  re- 
mained in  the  north  until  1532,  and  during  that  period  his 
council  governed  the  northern  counties.^  After  Richmond's 
departure  his  council,  known  now  as  the  "  council  of  the 
marches,"  continued  to  administer  the  north  in  co-operation  with 
the  duke  of  Northumberland,  lord  warden  of  the  marches,  until 
the  outbreak  of  the  Pilgrimage  of  Grace  in  the  autumn  of  1536.^ 

1  27  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  555. 

2  Calendar  of  Letters  and  Papers,  Henry  VIII,  iii.  pt.  ii.  No.  2075. 

8  Ibid.,  iii.  pt.  ii.  Nos.  2186,  2271,  2412,  3240,  3286;  iv.  pt.  i.  Nos.  219, 
762. 

*  Ibid.,  iv.  pt.  i.  Nos.  1435,  1510;  see  also  Dicirionary  of  National  Biog- 
raphy, xix.  204-205. 

5  Calendar  of  Letters,  etc.,  iv.  pt.  i.  Nos.  1727,  1773,  '779;  Pt-  ii-  Nos. 
2402,  3477,  3552,  3610,  3628,  3629,  3849,  4133,  5430. 

*  State  Papers,  iv.  Nos.  ccxxv,  ccxxix,  ccxxxi,  ccxxxv,  ccxl;  Calendar  of 
Letters  and  Papers,  Henry  VIII,  vi.  Nos.  16,  51,  143,  150,  217;  viii.  Nos. 
696,  945,  992-994- 


260     THE  PALATINE  AND  ROYAL   JUDICIARIES.    [Ch.  VI. 

It  is  clear  that  the  jurisdiction  of  the  lieutenant  and  council 
(or  councils)  extended  over  the  palatinate  from  1522  until  1537. 
In  the  first  place,  Bishops  Ruthall  and  Wolsey  were  not  the 
men  to  make  any  objection  to  such  an  infringement  of  their 
liberties.  They  were  statesmen,  whose  interest  and  advan- 
tage lay  in  forwarding  the  Tudor  policy  of  centralization ;  if  the 
local  exemptions  to  which  their  position  as  Bishops  of  Durham 
entitled  them  were  injured  in  that  process,  they  could  not  be 
concerned.^  Each  in  his  way  flew  at  higher  game  than  feudal 
sovereignty ;  the  time  for  that  was  past ;  and  thus  it  came  that 
the  palatinate,  as  the  relic  of  feudalism  the  most  alive  and  the 
least  able  to  defend  itself,  was  betrayed  in  the  house  of  its 
friends.  The  acquiescence  in  these  new  arrangements  of  at 
least  the  upper  classes  of  the  palatinate  may  be  inferred  from 
the  constant  presence  in  the  council  of  some  of  their  number, 
particularly  of  the  sheriff,  Sir  William  Bulmer,  and  the  chan- 
cellor, William  Frankleyne.^  Moreover,  for  an  official  residence 
the  lieutenant  and  council  had  their  choice  among  three  places, 
Pontefract  and  Sheriff  Hutton  in  Yorkshire  and  Barnard  Castle 
in  the  bishopric.^ 

But  there  is  also  direct  evidence  that  the  council  had  juris- 
diction over  the  palatinate.  The  lieutenant  and  part  of  the 
council  from  time  to  time  sat  with  the  justices  of  assize  at 
Durham ;  *  they  summoned  persons  from  the  bishopric  before 
them  to  answer  charges  and  to  give  testimony  ;  ^  and  this  tacit 
abolition  of  the  episcopal  franchise  was  one  of  the  grievances  put 
forward  by  the  insurgents  at  the  conference  at  Doncaster  in  1536.^ 

^  Ruthall  was  a  privy  councillor  and  secretary  of  state  ;  he  was  constantly- 
absent  from  his  diocese,  the  affairs  of  which  he  neglected.  Wolsey  never 
once  visited  Durham ;  he  cared  for  the  bishopric  only  in  so  far  as  it  produced 
revenue.  See  Chambre,  cap.  xiv,  in  Scriptores  Tres,  1 51-152;  Calendar  of 
Letters  and  Papers,  Henry  VIII,  iii.  pt.  ii.  Nos.  2946,  3518;  Surtees,  Dur- 
ham, i.  pp.  Ixv-lxvi. 

2  Calendar  of  Letters  and  Papers,  Henry  VIII,  iii.  pt.  ii.  Nos.  2075, 
2412;  iv.  pt.  ii.  Nos.  2402,  3552,  3689;  vi.  Nos.  51,  143  ;  viii.  No.  696. 

3  Ibid.,  iii.  pt.  ii.  No.  2412. 

^  Ibid.,  iii.  pt.  ii.  No.  3240;  iv.pt.  ii.  Nos.  3477,  3610. 
^  Ibid.,  iii.  pt.  ii.  Nos.  3295,  3296,  and  cf .  v.  No.  241. 
«  "  The  liberties  of  the  church  to  have  their  old  customs,  as  the  county 
palatine  at  Durham:"  Ibid.,  xi.  No.  1246. 


§35]  THE  COUNCIL   OF  THE  NORTH.  26 1 

Between  January  and  September,  1537,  the  north  was  vigor- 
ously pacified  by  the  duke  of  Norfolk  and  a  provisional  council, 
which  was  at  length  organized  on  a  permanent  footing  under 
the  presidency  of  Cuthbert  Tunstall,  Bishop  of  Durham.  Nor- 
folk and  his  council  were  instructed  to  proceed  under  martial 
law,  and  the  severity  of  their  administration  was  greatly  in- 
creased by  the  ill-timed  risings  at  Hull  and  Carlisle  in  the  begin- 
ning of  the  year.i  gy  some  oversight  Durham  had  not  been 
included  in  Norfolk's  commission;  but  the  duke  and  council 
proceeded  nevertheless  to  hold  an  assize  at  Durham,  "  keeping 
secret  our  lack  of  authority,"  as  they  wrote  the  same  day  to  the 
king.  Henry  applauded  this  discretion,  and  immediately  sent 
down  new  commissions  in  which  the  bishopric  was  included.^ 

In  July,  1537,  the  commission  was  issued  for  the  permanent 
council,  although  that  body  was  not  organized  until  Norfolk 
had  finished  his  task  of  pacification  in  September.^  In  the  dis- 
cussion that  preceded  the  establishment  of  the  Council  of  the 
North  the  king  was  recommended  to  take  into  his  own  hands, 
as  far  as  possible,  all  lordships  and  special  jurisdictions,  and 
to  extend  the  authority  of  the  new  body  over  Cumberland, 
Westmoreland,  Northumberland,  Durham,  and  York.*  In 
adopting  these  suggestions  the  king  expressed  his  intention  of 
erecting  "  a  standing  counseill  ther,  for  the  conservation  of  those 
countreyes  in  quiete  and  thadministration  of  commen  justice."^ 

The  Council  of  the  North  took  its  sanction  from  the  political 
and  legal  authority  of  the  privy  council,  and  its  establishment 
was  a  part  of  the  Tudor  policy  of  subjecting  the  outlying  dis- 
tricts of  the  kingdom  to  the  direct  control  of  the  king  and  his 
council.^  It  was  authorized  to  hear  and  determine  all  such 
offences  as  the  holding  of  illegal  assemblies  and  the  like  prac- 
tices, by  which  the  peace  of  the  king's  subjects  was  disturbed 

1  Ibid.,  xii.  pt.  i.  Nos.  86,  98,  421,  422,  479,  498. 

2  Ibid.,  Nos.  615,616,666. 

2  State  Papers,  v.  Nos.  cccxxii,  cccxxviii,  cccxxx,  cccxxxiii. 

*  Calendar  of  Letters  and  Papers,  Henry  VIII,  xii.  pt.  i.  No.  595. 
5  State  Papers,  i.  No.  Ixxxix. 

*  Dicey,  Privy  Council,  81-83;  Prothero,  Statutes  and  Documents,  In- 
trod.  cx-cxi. 


262     THE  PALATINE  AND  ROYAL   JUDICIARIES.   [Ch.  VI. 

in  the  counties  of  York,  Northumberland,  Westmoreland,  and 
Durham,  and  in  the  cities  of  York,  Kingston-on-Hull,  and  New- 
castle-upon-Tyne. It  was  also  to  hear  and  determine  all  real 
actions  and  those  concerning  free  tenements,  as  well  as  all  per- 
sonal actions  of  debt  and  like  causes  in  which  either  of  the 
parties  was  so  oppressed  by  poverty  that  he  could  not  easily 
prosecute  his  right  in  the  ordinary  courts.  Justice  was  to  be 
administered  according  to  the  law  and  custom  of  the  kingdom  of 
England,  or  "  aliter  secundum  sanas  discretiones  vestras."  ^ 

Thus  the  ultimate  royal  authority,  which  had  so  long  over- 
shadowed the  immunities  of  the  palatinate  and  which  had  been 
immensely  increased  by  the  act  of  1536,  was  now  made  tangible 
and  ever  present  by  the  existence  of  this  body,  which  was  su- 
preme in  all  legal  affairs  and  which  sat  not  only  in  the  neighbor- 
hood but  sometimes  actually  in  the  palatinate  itself.  Finally, 
Cuthbert  Tunstall,  the  Bishop  of  Durham,  was  president  of  the 
council,^  and  was  servilely  devoted  to  the  advancement  of  the 
king's  schemes  for  the  activity  of  the  new  body.  This  fact 
appears  in  one  of  his  early  reports  to  Cromwell.^ 


1  The  greater  part  of  the  commission  is  printed  in  Coke,  Fourth  Institute, 
cap.  xlix. 

2  Calendar  of  Letters  and  Papers,  Henry  VIII,  xii.  pt.  ii.  No.  1016.  See 
also  Ibid.,  viii.  No.  696;  this  document  seems  to  be  misplaced;  Mr.  Gaird- 
ner  assigns  it  to  the  year  1535 ;  it  is  signed  "  Cuthbert  Duresme  —  Thomas 
Tempest  —  Willm,  Frankeleyn  —  Robert  Hyndmer  —  Robert  Bowis  — 
Robt.  Meynell  — John  MetkalfE  —  Richard  Crosby." 

®  "  And  as  touchinge  all  other  persones,  of  what  sorte  of  men  so  ever 
they  bee,  kynne  or  frende  or  other,  that  shall  fortune  to  utter  their  stomakke 
agaynst  the  kinges  hyghness  or  to  be  accused  of  the  same,  I  for  my  parte 
shall  bere  them  lesse  favour  than  I  wolde  do  to  Turkes ;  for  Turkes,  albeyt 
they  be  infideles,  yeat  they  bee  of  the  same  nature,  men  as  we  bee,  and 
those  that  do  rebel!  agaynst  their  naturall  prince  whome  by  Goddes  lawe  and 
mans  lawe,  they  ought  to  defende,  be  to  be  reputed  as  no  men  but  as  ser- 
pents and  wylde  beestes.  .  .  .  There  is  also  remaynyng  at  Duresme  a 
preste  commytted  to  warde  by  my  Lord  of  Norfolke  wherein  also  the  Jus- 
tices of  Assise  that  shall  come  downe  may  bringe  the  minde  of  the  Juge 
....  the  xxist  day  of  this  monyth  we  [the  Council]  departe  hence  [from 
York]  to  Newecastell,  there  to  tarry  for  orderinge  of  the  maters  of  thoes 
North  parties  for  a  season  ....  surely  at  our  repair  thider  all  men  that  be 
wronged  will  complayn  unto  us  :  "  19  January,  1538,  Record  Office. 


§  35]  THE   COUNCIL   OF  THE  NORTH.  263 

The  powers  granted  by  the  commission,  and  the  attitude 
of  the  Bishop,  conspired  to  lay  the  judiciary  of  the  palati- 
nate at  the  feet  of  the  council,  which  might  remove  any  case 
from  the  palatine  courts.  Thus  in  1547  a  royal  precept  issued 
to  the  chief  steward  of  the  bishopric  reciting  the  tenor  of  a 
plea  heard  before  the  council  in  session  at  Gateshead  ^  ("  in 
curia  nostra  apud  Gateshed  coram  domino  precedente  et  con- 
silio  nostro").  This  was  a  plea  between  two  of  the  Bishop's 
subjects  relating  to  land  in  the  palatinate.  It  had  been  begun  in 
the  palatine  courts,  "  but  afterwards,  upon  exaction  of  the  matter 
before  the  president  and  council,"  was  continued  in  the  council. 
The  council  decreed  in  favor  of  the  plaintiff,  ordered  the  stew- 
ard to  put  him  in  seisin,  and  directed  the  Bishop  to  allow 
execution  of  the  order.^  This  tells  the  whole  story.  In  the 
administration  of  law  the  palatinate  has  become  a  negligible 
quantity.  It  is  not  destroyed  or  swept  away  ;  that  would  have 
been  inconsistent  with  the  genius  of  the  English  race,  which  is 
before  all  things  conservative  of  appearances ;  but  the  life  that 
was  in  it  has  gone.  The  courts,  as  we  know,  remained ;  people 
found  it  economical  and  convenient  to  have  justice  dispensed  at 
their  very  doors.  It  is  not  our  business,  however,  to  set  forth 
the  arrangements  made  or  maintained  for  the  convenience  of  a 
small  community  of  our  ancestors.  The  living  organism  with 
which  we  were  concerned  has  become  a  heap  of  dry  bones. 

1  Gateshead  is  in  the  county  of  Durham. 

2  Rot.  ii.  Tunstall,  ann.  i  Edw.  VI,  m.  21  dorse,  curs.  'j^.  Two  events 
may  here  be  briefly  mentioned.  Just  before  the  rebellion  the  people  of  Dur- 
ham, treading  in  the  path  marked  out  by  Coke,  made  a  grandiloquent  but 
ineffectual  protest  against  the  encroachments  of  the  Council  of  the  North 
on  the  hberties  of  the  palatinate.  The  document  is  preserved  in  the  Record 
Office  (Auditor  3,  No.  128,  Customs  against  the  Court  of  York).  Again,  in 
1636,  a  man  named  Claxton  brought  suit  in  the  palatine  courts  against  one 
Lilburne,  for  the  recovery  of  lands  in  the  palatinate.  Lilburne,  to  the  dis- 
may of  his  adversary,  offered  battle,  and  Claxton  frantically  petitioned  the 
king  for  remedy  against  this  inconvenient  resuscitation  of  an  obsolete  legal 
engine  (Calendar  of  State  Papers,  Domestic,  1636-1637,  pp.  136,  181). 


CHAPTER   VII. 

FINANCIAL  ARRANGEMENTS    IN   THE   PALATINATE. 

§  36.    The  Palatine  Exchequer. 

The  Bishops  of  Durham  maintained  at  Durham  an  exchequer 
organized  on  much  the  same  plan  as  that  at  Westminster.  It  is 
very  difficult  to  present  the  history  of  this  institution,  because 
no  description  of  it  is  in  existence,  and  because  its  records  for 
any  period  earlier  than  the  middle  of  the  fifteenth  century  have, 
with  a  few  exceptions,  disappeared.  Under  these  circumstances 
the  history  of  the  palatine  exchequer  will  have  to  be  reconstructed 
chiefly  by  the  comparison  of  such  random  notices  as  occur  in  the 
documents  at  our  disposal. 

We  shall  scarcely  look  for  an  exchequer  in  the  palatinate  be- 
fore the  accession  of  Bishop  Pudsey  in  1152.  That  prelate 
probably  founded  the  institution ;  for,  although  the  term  scacca- 
rium  does  not  occur  in  any  of  the  documents  surviving  from 
Pudsey's  pontificate,  notices  of  dues  or  money  payable  "  at  the 
four  accustomed  terms  in  the  bishopric"  are  fairly  frequent.^ 
We  may  infer,  therefore,  that  there  was  some  sort  of  organiza- 
tion to  receive  and  account  for  the  money  thus  paid,  particularly 
as  Pudsey  is  known  to  have  introduced  changes  into  the  govern- 
ment of  the  palatinate,  and  from  his  experience  in  the  king's 
service  to  have  been  familiar  with  the  fiscal  methods  in  use  at 
Westminster.  The  earliest  mention  of  the  Durham  exchequer 
by  that  name  occurs  in  12 19,  in  a  papal  confirmation  of  a  grant  of 
an  annual  pension  payable  at  the  exchequer  of  Durham.^  If  after 
this  but  little  is  heard  of  the  exchequer  until  the  beginning  of  the 

1  Boldon  Book,  App.  xlii,  xliv,  xlv;  Scriptores  Tres,  App.  No.  xlv;  Feo- 
darium,  177,  199. 

2  Calendar  of  Papal  Registers,  i.  62.  The  beneficiary  was  Petrus  Sarra- 
cenus,  a  knight  of  the  empire.  In  1258  the  Bishop  was  required  by  royal 
writ  to  continue  the  payment  of  this  pension.  See  Memoranda  Roll,  42  Hen. 
Ill,  rot.  18 a,  quoted  in  Madox,  Exchequer,  ii.  4,  note. 


§36]  THE  PALATINE  EXCHEQUER.  265 

fourteenth  century,  it  is  because  the  Durham  records  do  not  until 
then  begin  to  be  plentiful  or  even  adequate.^ 

There  is  some  difficulty  with  regard  to  the  dates  of  the  ex- 
chequer terms.  The  sessions  of  the  royal  exchequer  corre- 
sponded with  the  four  law  terms,  Easter,  Trinity,  Michaelmas, 
and  Hilary  ;2  and,  as  these  were  originally  determined  by  the 
ecclesiastical  ban  laid  upon  secular  business  during  certain  sea- 
sons in  the  Christian  year,  it  is  not  likely  that  the  dates  would 
vary  very  much  in  the  bishopric.  Accordingly  in  Bishop  Pud- 
sey's  time  the  accustomed  terms  were  the  feasts  of  S.  Cuthbert 
in  Lent  (March),  S.  John  the  Baptist  (June  24),  the  translation 
of  S.  Cuthbert  (September  4),  and  S.  Martin  (November  11). 
This  arrangement,  by  including  the  two  feasts  of  S.  Cuthbert, 
gratified  local  pride  without  encroaching  seriously  upon  the  for- 
bidden seasons ;  it  also  had  the  advantage  of  allowing  the  Bishop 
and  officers  of  the  palatinate  to  be  present  at  the  sessions  of 
both  the  royal  and  the  palatine  exchequers.  This  probably 
was  the  true  cause  of  the  selection  of  the  dates,  for  the  Bishops 
of  Durham  frequently  held  the  great  seal  of  the  kingdom,^  and 
sometimes  even,  as  in  the  case  of  Walter  de  Merton,  shared 
with  the  king  the  services  of  a  learned  clerk. 

The  actual  dates  of  the  meetings  of  the  palatine  exchequer  do 
not  occur  again  until  1307,  although  we  meet  now  and  then  with 
the  phrase,  **  ad  quatuor  anni  terminos  in  episcopatu  nostro  sta- 

1  An  interpolation  in  the  text  of  Boldon  Book  (p.  3)  throws  a  little  light 
on  the  exchequer  during  the  pontificate  of  Bishop  Kirkham,  A.  d.  i  249-1260 ; 
it  is  as  follows :  "  Gilbertus  .  .  .  tenet  in  mora  de  Newbotell  xxxiv.  acras 
terrae  .  .  .  reddendo  annuatim  Scaccario  Dunolm.  28j.  4^.  ad  iv.  terminos 
statutos  in  Episcopatu  Dunolm.  .  .  .  Rogerus  .  .  .  tenet  xlviii.  acras  in 
Helmygdene  per  divisas,  sicut  in  carta  quam  habet  de  Domino  Waltero  Epis- 
copo  Dunolm.  plenius  continetur,  reddendo  \os.  ad  Scaccarium  Dunolm.  ad  iv. 
terminos  in  Episcopatu  Dunolm.  constitutos."  The  date  is  established  by  the 
fact  that  the  manuscript  from  which  Dr.  Greenwell  printed  was  transcribed 
just  after  Bishop  Hatfield's  death  in  1381 ;  but  until  the  accession  of  Bishop 
Skirlaw  in  1388  there  had  been  but  one  Bishop  Walter,  i,e.  Walter  de 
Kirkham. 

2  Madox,  Exchequer,  ii.  5.  Easter  and  Michaelmas  were  the  most  impor- 
tant ;  when  necessary,  certain  supplementary  sessions  were  also  held. 

3  Between  11 28  and  1530  six  Bishops  of  Durham  were  chancellors  of 
England  for  varying  lengths  of  time.     These  were  Geoffrey  Rufus,  Richard 


266  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

tutos."^  In  1307  the  receiver-general  accounted  for  receipts  at 
the  four  major  and  five  minor  terms.^  As  the  first  membrane  of 
the  roll  has  been  lost,  we  should  be  left  in  doubt  whether  the  first 
major  term  was,  as  usual,  the  feast  of  S.  Cuthbert  in  March, 
were  it  not  for  the  fact  that  in  1357  we  hear  of  the  four  great 
terms  of  the  exchequer,  beginning  with  the  feast  of  S.  Cuthbert 
in  March.2  The  other  three  terms  were  S.  John  the  Baptist, 
S.  Cuthbert  in  September,  as  before,  and  Michaelmas,  which 
was  substituted  for  the  feast  of  S.  Martin,  a  change  which  seems 
to  have  been  permanent.  This  arrangement  appears  to  have 
continued,*  and  we  hear  no  more  of  the  minor  terms,  unless 
indeed  they  may  be  connected  with  a  record,  in  1435,  of  certain 
moneys  payable  at  the  exchequer  at  Christmas,  Easter,  and  the 
feast  of  S.  John  the  Baptist ;  °  and  even  this  record  would  supply 
the  dates  of  two  only.  Probably  these  minor  sessions  occurred 
only  under  pressure  of  necessity,  and  were  held  when  most  con- 
venient. The  Michaelmas  term  seems  eventually  to  have  taken 
precedence  over  all  the  others ;  the  sheriffs  accounted  then,^  and, 
when  in  the  fifteenth  century  the  series  of  receiver-generals'  rolls 
begins,  the  accounts  run  from  Michaelmas  to  Michaelmas.*^ 

de  Marisco,  Richard  de  Bury,  Thomas  Langley,  Laurence  Booth,  and 
Thomas  Wolsey.     See  Dugdale,  Chronica  Juridicialia. 

1  Boldon  Book,  3;  Registrum,  ii.  1187,  A.  D.  1291 ;  Rot.  C.  Langley,  ann. 
26,  m.  3,  curs.  36,  A.  D.  1299.  Each  of  these  two  latter  is  an  inspeximus  of  a 
charter  of  Bishop  Bek. 

2  "  Summa  tocius  receptus  ad  quatuor  terminos  majores  et  quinque  mi- 
nores:  "  Receipt  roll  of  1307,  Boldon  Book,  App.  xxx. 

8  This  was  an  indenture  of  the  farm  of  certain  coal-mines.  The  farmers 
were  to  pay  five  hundred  marks  "  a  qatre  grandes  termes  usez  et  accustumez 
en  levesche  de  Duresme.  .  .  .  le  premier  terme  de  leur  paiment  a  la  sente 
Cuthberte  en  mars  proschen  et  ensy  de  terme  en  terme :  "  Rot.  i.  Hatfield, 
ann.  12,  m.  11  dorse,  curs.  30. 

^  Registrum,  i.  9,  10,  a.  d.  131  i  ;  Ibid.,  ii.  781-782,  A.  d.  1316;  Rot.  Ford- 
ham,  ann.  5,  m.  8  dorse,  curs.  32,  a.  d.  1387;  Rot.  DD.  Langley,  ann.  30, 
m.  14,  curs.  37,  A.  D.  1436. 

^  Rot.  C.  Langley,  ann.  29,  m.  15,  curs.  36. 

*  Sheriffs'  accounts,  A.  d.  1336,  141  o,  1535,  Auditor  i,  Nos.  i,  2,  40. 

'  Receiver-generals'  accounts,  A.  d.  1454,  1461,  Ecclesiastical  Commis- 
sioners, ministers'  accounts,  189696,  189816;  Ibid.,  A.  d.  1466-1472,  Audi- 
tor 5,  No.  149. 


§36J  THE  PALATINE  EXCHEQUER.  267 

It  is  extremely  probable  that  the  annual  audit  of  the  palatine 
accounts  took  place  at  Michaelmas.  Persons  were  appointed  for 
this  purpose  under  a  special  commission,  and  there  was  a  double 
audit,  namely  of  all  accounts  of  minor  officers  by  three  or  four 
commissioners,  of  whom  the  receiver-general  would  ordinarily  be 
one,  and  of  the  receiver-general's  own  account  by  another  set  of 
commissioners.  Although  Bishop  Bek's  receipt  roll  shows  un- 
mistakable signs  of  having  been  audited,^  the  first  mention  of  the 
process  is  in  13 12,  in  the  shape  of  an  acquittance  of  the  account 
of  the  receiver-general  of  Norham.  This  document  contains  the 
following  words :  **  Sciatis  nos  per  auditores  compotorum  nos- 
trorum  recepisse  et  audivisse  .  .  .  compotum  de  Norham  de 
omnibus  receptis,  expensis  et  liberatis  factis  ad  scaccarium  de 
Norham."  ^  In  December  of  the  same  year  the  Bishop  appointed 
three  persons  to  audit  the  accounts  of  all  his  officers,  giving  them 
full  power  to  receive  all  moneys  due  to  the  Bishop,  and  to  make 
such  allowances  and  acquittances  as  they  thought  reasonable. 
Two  at  least  were  to  serve,  but  they  might  associate  with  them- 
selves whomsoever  they  chose.^  Robert  de  Brompton,  one  of 
the  three  persons  mentioned  in  this  commission,  was  the  Bishop's 
chancellor  and  receiver-general  the  following  year,*  and  was  also 
reappointed  as  an  auditor.^  Similar  commissions  may  be  found 
on  the  later  chancery  rolls  of  the  palatinate;  thus  in  1404  Bishop 
Skirlaw  appointed  five  auditors,  including  his  steward,  chan- 
cellor, and  chamberlain.^ 

In  1 3 14  Bishop  Kellaw  commissioned  three  persons  to  audit 
the  accounts  of  Robert  de  Brompton,  his  receiver-general.  These 
were  Brompton's  late  associates  in  the  audit  of  ministers'  ac- 
counts, and  William  de  Denum,  one  of  the  palatine  justices  and 

1  Against  the  note  of  certain  expenses  there  is  entered  in  the  margin  the 
remark,  "  Non  allocatur  adhuc  quare  oportet  inde  fieri  inquisitio:"  Boldon 
Book,  App.  xxxvii. 

2  Registrum,  i.  251.  3  ibid.,  261.  *  Ibid.,  454,  468. 
5  Ibid.,  452-453,  and  cf.  Ibid.,  ii.  682. 

*  Rot.  Skirlaw,  ann.  16,  m.  31,  curs.  33.  The  steward  and  the  chancellor 
are  mentioned  by  name,  and  Peter  del  Hay,  armiger,  figures  as  the  Bishop's 
chamberlain  in  an  indenture  of  a  payment  made  to  him  by  the  steward  (Eccle- 
siastical Commissioners,  ministers'  accounts,  221 100).  Another  appointment 
of  auditors  is  on  Rot.  B.  Langley,  ann.  11,  m.  11,  curs.  35. 


268  FINANCIAL  ARRANGEMENTS,  [Ch.   VII. 

sometime  chancellor.^  They  received  the  usual  authority  to  make 
acquittances  and  to  disallow  extravagant  or  unreasonable  ex- 
penses, according  to  their  discretion.^  Provision  for  this  kind  of 
audit  was  made  in  the  appointment  of  a  receiver-general  in  1420.^ 
In  the  fifteenth  century  the  auditors  received  a  salary  varying 
from  five  to  ten  pounds,  according  to  their  degree,  besides  their 
living  expenses  at  the  time  of  the  audit ;  and,  in  case  they  did  not 
reside  at  Durham,  they  had  also  the  cost  of  their  journey  there  and 
back.*  This  last  item  was  protested  in  1472,  but  was  eventually 
allowed.^  In  general,  allowances  were  made  either  by  warrant 
from  the  Bishop,^  which  was  of  course  unquestionable,  or  else  by 
petition  to  the  auditors,  who  then  used  their  discretion.  Every 
allowance  was  petitioned  for  separately  on  a  scrap  of  parchment, 
and  a  collection  of  these  for  the  year  1395  has  survived.^ 
The  annual  audit  in  the  royal  exchequer  has  been  called  "rather 

1  Registnim,  i.  257,  ii.  1258.  ^  Ibid.,  ii.  687. 

*  Rot.  B.  Langley,  ann.  14,  m.  18,  curs.  35. 

*  Receiver-general's  account,  A.  D.  1461,  Ecclesiastical  Commissioners, 
ministers'  accounts,  189816;  Ibid.,  A.  d.  1466-1472,  Auditor  5,  No.  149. 

^  The  sum  of  forty  shillings  was  allowed  for  the  expenses  of  John  de 
Hartlepool  in  coming  from  Huntingdonshire  to  Howden  and  then  on  to 
Durham  to  audit  the  accounts,  and  in  returning  to  Huntingdon  ;  and  twenty- 
three  shillings  and  fourpence  for  the  maintenance  of  himself  and  his  horse 
while  he  was  at  Durham.  A  similar  allowance  of  twenty  shillings  for  the 
expenses  of  another  auditor  was  made  "  eo  quod  consideratum  est  per  con- 
silium domini,  per  inspectionem  compotorum  praecedentium  tam  temporibus 
Roberti  Nevill  nuper  Dunelmensis  Episcopi  quam  Thomae  Langley  praede- 
cessoris  sui,  quod  tales  expensae  dicto  Willielmo  .  .  .  allocantur:"  Receiver- 
generals'  accounts,  A.  D.  1 466-1 472,  Auditor  5,  No.  149. 

*  Registrum,  i.  467,  562,  566.  A  good  example  is  the  Bishop's  warrant 
to  the  sheriff,  in  1410,  with  regard  to  the  payment  to  the  prior  of  the  share 
of  the  profits  of  jurisdiction  accruing  to  him  under  the  terms  of  the  Convenit. 
This  is  in  French,  and  is  addressed  "  al  auditors  des  accountes  des  mes 
ministres  en  countee  de  Duresme; "  it  directs  that  "vous  suffres  les  susditz 
priour  et  convent  avoir  la  moite  de  les  susditz  fines,  issues,  et  amerciamentz 
de  lours  tenauntz  reseantz,  come  desuis,  et  facez  notre  viconte  .  .  .  de  avoir 
due  allouance  et  discharge  en  son  accent.  Et  cestez  noz  lettres  vous  enser- 
vent  garrant "  (Auditor  i,  No.  2).  There  is  in  the  Record  Office  a  bundle  of 
vouchers  or  warrants  of  this  sort,  most  of  them  in  English  and  dated  1400- 
1481,  numbered  Ecclesiastical  Commissioners,  ministers'  accounts,  221 161. 

'  Ecclesiastical  Commissioners,  ministers'  accounts,  221 160. 


§36]  THE  PALATINE  EXCHEQUER.  269 

an  expedient  for  punishment  and  warning  than  a  scheme  for  en- 
forcing ministerial  good  behaviour."  ^  We  get  some  notion  of  this 
aspect  of  the  audit  in  the  palatinate  from  an  entry  in  the  receiver- 
general's  account  for  1461.  The  sum  of  fourteen  shillings  and 
fourpence  was  paid  to  John  Barton  for  riding  to  the  four  wards 
to  discipline  the  collectors  and  other  officers  who  neglected  the 
days  set  for  accounting.  The  auditors  assigned  ten  shillings  to 
the  sub-keeper  of  the  gaol  at  Durham  for  his  faithful  custody 
of  the  collectors,  clerks,  and  other  officers  imprisoned  there  dur- 
ing the  audit  by  reason  of  their  debts  to  the  Bishop.^  There 
was  probably  also  a  certain  amount  of  festivity  in  connection 
with  the  occasion,  for  the  Bishop  came  to  Durham  Castle  and 
considerable  provision  was  made  for  the  entertainment  of  the 
auditors.^ 

All  the  officers  of  the  palatinate  were  responsible  to  the  re- 
ceiver-general for  the  issues  of  their  office,  and  his  account  (which 
was  analogous  to  the  pells  of  issue  and  receipt)  was  a  digest  of 
their  more  detailed  accounts.  It  does  not  appear  that  there  was 
anything  like  a  chancellor's  antigraph  to  check  the  account  of 
the  receiver-general,  and  it  is  highly  improbable  that  there  should 
have  been  one,  for,  as  we  have  seen,  the  offices  of  chancellor  and 
receiver-general  were  commonly  held  by  the  same  person.  The 
sheriff,  coroners,  and  the  managers  of  the  Bishop's  mines  kept 
separate  account  rolls,  as  did  also  some  other  of  the  minor  officers ; 
but  these  latter  records  have  almost  no  constitutional  value.*  It 
does  not  appear  that  tallies  were  much  used ;  nearly  all  business 
was  transacted  by  indenture,  a  device  which  was  used  for  both 
receipts  and  arrears.  The  little  scraps  of  indented  parchment, 
pierced  through  the  centre,  were  strung  together  on  a  twisted 

1  Stubbs,  ii.  612. 

2  Receiver-general's  account,  A.  D.  1461,  Ecclesiastical  Commissioners, 
ministers'  accounts,  1898 16. 

3  In  1461  the  castle  was  cleaned  and  repaired,  and  quantities  of  hay,  coals, 
candles,  and  the  like  were  purchased  in  preparation  for  the  audit  (Ibid.).  In 
1472  and  1492  the  hospicius  of  the  Bishop  was  furnished  with  money  for 
the  purchase  of  corn,  beer,  and  other  victuals  for  the  time  of  the  audit 
(Auditor  5,  No.  149;  Ecclesiastical  Commissioners,  ministers'  accounts, 
189698). 

■*  For  an  account  of  these  documents,  see  below,  App.  ill. 


270  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

wisp  of  sheepskin  and  joined  to  the  account  roll.^     All  these 
documents  were  in  charge  of  the  clerk  of  the  exchequer.^ 

One  of  the  greatest  difficulties  to  be  encountered  in  the  study 
of  the  palatine  excheqijer  is  the  fact  that  it  was  never  properly 
differentiated  from  the  chancery.  As  courts  of  law  there  was 
never  any  attempt  to  distinguish  between  them,^  and  there  is  evi- 
dence to  show  that  even  in  fiscal  matters  the  two  bodies  closely 
interpenetrated.  This  confusion  must  have  been  largely  due  to 
the  fact,  so  often  noticed  in  this  study,  that  the  chancellor  and 
receiver-general  were  frequently  identical.  But  there  is  more 
definite  evidence.  In  1336  the  sheriff  accounts  for  twenty 
pounds  received  from  William  Chancellor,  constable  of  Durham, 
and  paid  into  chancery.*  In  1410  the  sheriff  reports  that  there 
are  no  profits  of  fines  and  amercements  before  the  justices  of 
oyer  and  terminer  and  gaol  delivery,  because  the  estreats  were 

1  See  Ecclesiastical  Commissioners,  ministers' accounts,  221 160,  a  mis- 
cellaneous bundle.  The  first  collection  is  endorsed  thus,  "  ceulx  sount  les 
parcellez  de  William  Forester,  Ian  de  Monsieur  W[alter]  Evesque  de  Duresme 
septisme,"  and  consists  of  indentures  of  collectors  who  bind  themselves  in 
various  sums  of  money  to  Robert  de  Wychf.  Wyclif  was  Bishop  Skirlaw's 
constable,  chancellor,  and  receiver-general  (Scriptores  Tres,  App.  No.  clxi ; 
Rot.  Skirlaw,  ann.  5,  m.  9  dorse,  and  ann.  16,  m.  31,  curs.  33).  Auditor  5, 
No.  149,  is  another  miscellaneous  bundle  containing  a  sheaf  of  indentures  as 
described  above,  of  which  the  following  is  typical :  "  Haec  indentura,  facta 
apud  Dunelmum  xii'"-?  die  Julii  anno  pontificatus  domini  Thomae  Cardinalis 
[Wolsey]  Episcopi  Dunelmensis  sexto,  testat  quod  Radulfus  .  .  .  collector 
de  Herrington  deliberavit  magistro  Willelmo  Frankleyn  clerico,  cancellario 
ac  receptori  generali  scaccarii  Dunelm.  de  exitibus  officii  sui  dictae  villae 
hujus  anni,  in  primis  27^." 

2  See  the  appointment  by  Bishop  Bainbridge,  in  1507,  of  William  Nor- 
ton to  be  "  clericum  scaccarii  nostri  et  custodem  rotulorum  omnium  compo- 
torum  ministrorum  nostrorum  infra  scaccarium  nostrum  Dunelmensem " 
(Rot.  i.  Bainbridge,  ann.  i,  m.  8,  curs.  68).  In  the  fifteenth  century  we 
meet  with  a  clerk  of  the  chancery  and  custos  rotulorum,  and  a  clerk  of  the 
great  roll  (Receiver-generals'  accounts,  A.  d.  1461,  1472,  Ecclesiastical  Com- 
missioners, ministers'  accounts,  189816,  and  Auditor  5,  No.  149;  Rot.  A.  Booth, 
ann.  2,  m.  6,  curs.  48). 

•  See  above,  p.  190. 

*  "  Et  de  xx/  receptis  de  Willelmo  Chauncellor,  constabulario  Dunelm. 
anno  praecedente,  pro  equitancia  istius  computatoris  liberatis  in  cancellaria 
Dunelm.  eodem  anno:  "  sheriff's  account,  A.  D.  1336,  Auditor  i.  No.  i. 


§37]  THE  BISHOP'S  REVENUE,  271 

paid  into  the  chancery  of  Durham  and  the  chancellor  is  respon- 
sible for  them.^  The  same  arrangement  was  made  in  Sadberg 
in  that  year.^  In  1466  the  coroner  accounts  for  certain  sums  of 
money  paid  to  the  receiver-general  of  the  exchequer,  "  as  is  con- 
tained in  a  certain  paper-book  of  receipts  in  the  chancery  at 
Durham."^  Finally,  we  know  that  in  the  fifteenth  century  a 
new  building  was  constructed  for  the  joint  accommodation  of 
the  exchequer  and  the  chancery,*  and  there  is  evidence  to  show 
that  these  courts  had  both  been  held  in  the  hall  of  Durham 
Castle.^  There  was  a  separate  exchequer  for  Norham,  and 
there  is  an  independent  but  extremely  fragmentary  series  of 
fiscal  records  for  that  district.^ 


§  37.    The  Bishop's  Revenue. 

We  have  now  to  consider  the  Bishop's  revenue.  This  was 
derived  from  two  general  sources,  namely,  from  taxation  and 

1  Sheriff's  account,  A.  d.  1410,  Auditor  i,  No.  2. 

2  Ibid. 

8  Coroner's  account,  a.  d.  1466,  Ecclesiastical  Commissioners,  ministers' 
accounts,  189697. 

*  "Hie  [Bishop  Nevill]  Scaccarium  coram  portis  Castri  Dunelmensis 
quadratum  .  .  .  construxit ;  in  quo  curia  cancellariae,  scaccariae  receptoris 
compiitatorisque  tenetur:  "   Chambre,  cap.  vii,  in  Scriptores  Tres,  147. 

5  A  survey  of  the  Easington  ward,  made  in  1388,  describes  the  palace 
green  (the  space  between  the  cathedral  and  the  castle)  as  containing  the 
houses  of  the  officers  of  the  chancery  and  the  exchequer,  with  a  hall  for  the 
law  courts,  "  pro  placitis  justiciariorum  "  (Ecclesiastical  Commissioners,  min- 
isters' accounts,  220195,  fol.  i)  ;  but  nothing  is  said  of  a  separate  building  for 
either  the  chancery  or  the  exchequer,  which,  had  it  existed,  would  certainly 
have  been  in  this  part  of  the  city.  Again,  the  receiver-general  was  com- 
monly constable  of  the  castle  and  accordingly  lived  there ;  and  in  the  re- 
ceiver-general's account  for  1461,  among  other  items,  the  cost  of  cleaning 
the  exchequer  and  of  procuring  candles  for  the  use  of  the  chancery  and 
exchequer  at  the  time  of  the  audit  appears  in  close  proximity  to  the  expense 
for  the  purchase  and  fetching  of  coals  for  the  castle  at  the  time  of  the  audit 
(Ecclesiastical  Commissioners,  ministers'  accounts,  1898 16). 

®  Apparently  there  are  no  early  receiver-generals'  accounts,  but  three 
fifteenth-century  sheriffs'  accounts  have  survived  (Auditor  i,  Nos.  3,  4,  5). 
The  exchequer  of  Norham  is  mentioned  in  the  fourteenth  century  (Regis- 
trum,  i.  251,  Ibid.,  ii.  1157,  1158,  1177). 


272  FINANCIAL  ARRANGEMENTS^  [Ch.  VIL 

from  the  income  accruing  to  the  Bishop  from  his  feudal  and 
quasi-royal  position.  The  subject  of  taxation,  having  already- 
come  before  us  in  another  connection,  will  not  detain  us  long. 
No  instances  of  direct  contributions  exacted  by  the  Bishop  in 
his  province  occur  before  the  early  fourteenth  century,  although 
this  circumstance  is  probably  due  to  the  absence  of  documents 
bearing  on  the  thirteenth  century,  a  period  when  such  a  prac- 
tice might  have  been  expected  to  arise,  since  earlier  than  this 
the  predominance  of  feudal  ideas  would  probably  have  enabled 
the  Bishops  to  obtain  what  they  needed  without  recourse  to  the 
comparatively  novel  method  of  direct  taxation.^  Besides,  the 
expression,  in  the  charter  of  1302,  of  the  principle  that  "no  car- 
riage should  be  required  of  free  men  without  certain  grant,"  ^ 
suggests  both  that  the  Bishops'  subjects  knew  how  to  grant 
contributions  (in  kind  if  not  in  money),  and  that  the  Bishops 
had  been  taking  them  without  such  grant.  Further  evidence 
in  this  direction  is  found  in  the  authorization,  in  13 14,  of  the 
Bishop's  steward  to  assemble  the  people  for  the  safety  of  the 
country  and  to  impose  taxes  {collectae)  upon  them ;  ^  and  in 
the  fact  that  in  1344  the  commonalty  of  the  province  granted 
the  Bishop  a  sum  of  money  which  was  to  be  assessed  and  raised 
"  prout  antiquitus  fieri  consuevit."  *  Although  this  is  the  first 
recorded  case  of  a  palatine  tax,  it  cannot  be  doubted,  in  view  of 
the  evidence  which  has  been  considered,  that  such  direct  contri- 
butions were  already  well  known. 

The  money  was  granted  in  1344  to  purchase  a  truce  with  the 
invading  Scots ;  indeed,  the  state  of  the  borders  from  the  end  of 
the  thirteenth  century  would  no  doubt  account  for  a  good  deal 
of  taxation  in  the  palatinate  which  under  more  favorable  condi- 
tions would  have  been  unnecessary.     But  this  method  of  raising 

^  It  is  worth  noting  in  this  connection  that  the  fumage,  or  hearth-penny, 
which  before  the  Conquest  was  habitually  paid  to  the  king,  had  been  from  a 
very  early  time  applied,  in  Durham,  to  the  fabric  of  the  cathedral,  and  for 
this  reason  was  probably  paid  to  the  Bishop.  See  the  mandate  of  Alex- 
ander III  to  the  clergy  of  Durham,  directing  that  this  pious  custom  should 
be  continued ;  Scriptores  Tres,  App.  No.  xxxvi.  Cf.  DoweU,  History  of 
Taxation,  i.  12. 

2  Registrum,  iii.  43,  64.  »  Ibid.,  ii.  686.  *  Ibid.,  iv.  273-277. 


§37]  THE  BISHOP'S  REVENUE.  2/3 

money  was  not  reserved  exclusively  for  the  purchase  of  truces 
with  the  Scots.  In  1348  the  palatine  assembly  granted  the 
Bishop  four  hundred  marks,  to  be  raised  by  a  proportionate 
assessment  on  the  wards  of  Durham  and  Sadberg.  This  money 
was  granted  to  reimburse  the  Bishop  for  the  extraordinary  ex- 
penses occasioned  by  his  efforts  to  preserve  intact  the  liberties 
of  the  palatinate.^  In  131 1  the  men  of  the  palatinate  induced 
the  Bishop-elect,  Richard  Kellaw,  to  make  fine  with  the  king, 
who  threatened  to  hold  an  eyre  at  Durham,  promising  to 
repay  him.  Kellaw  expended  a  large  sum  for  this  purpose, 
and,  although  his  subjects  declined  to  reimburse  him,  it  can  not 
be  doubted  that  a  tax  similar  to  that  of  1348  was  contemplated.^ 
After  1348  there  is  no  further  case  of  an  episcopal  tax,  but  be- 
fore the  close  of  the  fourteenth  century  the  practice  of  extending 
to  the  palatinate  the  incidence  of  royal  taxation  begins  to  ob- 
tain, and  by  the  middle  of  the  fifteenth  century  the  principle  is 
well  established.^ 

We  conclude,  then,  that  in  the  thirteenth  and  fourteenth  cen- 
turies direct  taxation  of  the  palatinate  was  a  regular,  if  not  a  very 
frequent,  source  of  the  Bishop's  revenue  ;  further,  that  it  was 
reserved  to  meet  extraordinary  expenses,  and  hence,  owing  to 
the  disturbed  condition  of  the  borders  in  the  fourteenth  cen- 
tury, was  at  that  period  more  frequently  resorted  to ;  and,  finally, 
that  the  increasing  centralization  of  the  national  government, 
causing  the  palatinate  to  be  drawn  into  the  general  responsi- 
bility and  to  partake  of  the  national  defence,  removed  at  once 
the  cause  and  the  justification  for  local  taxation. 

With  regard  to  the  method  of  assessment  and  collection  of 
the  sums  of  money  granted  to  the  Bishop  very  little  can  be  said. 
In  1344,  when  the  first  detailed  statement  occurs,  the  propor- 
tion payable  by  every  ward  of  the  palatinate  was  well  estab- 
lished and  was  indicated  in  the  commission  of  the  collectors.* 
The  sum  thus  assigned  was  to  be  collected  in  every  vill  and 
hamlet  of  every  ward,  either  from  the  local  community  in  a 
round  sum  or  from  individuals,  according  to  the  discretion  of 

1  Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30;  see  also  above,  p.  119. 

2  Graystanes,  cap.  xxxiv,  in  Scriptores  Tres,  93. 

3  See  below,  §  38.  ^  Registrum,  iv.  274. 

18 


2/4  FINANCIAL  ARRANGEMENTS.  [Ch.  VIL 

the  collectors  and  the  custom  obtaining  in  former  cases.^  Au- 
thority to  distrain  and  to  imprison  was  given  to  the  collectors, 
and  for  this  purpose  the  services  of  the  sheriff  were  placed  at 
their  disposal.^  Finally,  the  money  was  to  be  raised  within 
a  given  time  and  paid  into  the  exchequer  at  Durham.  The 
arrangements  for  raising  the  tax  of  1348  were  the  same  as 
those  illustrated  by  the  earlier  document,  but  the  commission 
in  this  case  was  much  more  brief.^ 

The  Bishop  of  Durham  as  temporal  lord  also  obtained  grants 
of  money  from  his  clergy.  In  1307  the  receiver-general  ac- 
counted for  the  issues  of  a  tenth  granted  to  the  Bishop  by 
the  clergy  of  his  diocese,  but  the  sum  mentioned  is  so  small 
(^£2^  45.  ^y^d?)  that  the  collection  had  probably  only  just  be- 
gun."*  In  131 1  the  clergy  of  the  diocese  granted  to  the  new 
Bishop,  Richard  Kellaw,  a  tenth  of  ecclesiastical  benefices  for 
one  year,  and  a  gross  sum  of  ;^854  17^.  %d,  was  collected.^  A 
similar  grant  was  made  in  1313.^  It  is  natural  to  suppose  that 
if  this  privilege  were  constantly  or  even  frequently  exercised  by 
the  Bishop,  his  clergy  would  have  enjoyed  a  measure  of  exemp- 
tion from  other  taxation.  But  this,  apparently,  was  not  the  case. 
The  diocese  of  Durham  paid  its  share  of  Peter's  pence,  although 
this  went  to  the  archbishop  of  York  and  not  directly  to  Rome ;  ^ 
besides,  as  we  shall  see,  Durham  was  included  in  the  grants 
of  spiritual  taxation  made  by  the  popes  to  Edward  I  and  Ed- 
ward 11.^ 

A  new  policy  was  adopted  after  Edward  Ill's  breach  with 
Rome.  In  1376  the  king  wrote  to  the  archbishop  of  York  that 
he  had  heard  that  the  latter,  by  reason  of  certain  papal  letters, 
was  about  to  visit  the  clergy  and  people  of  the  diocese  of  Durham 
for  the  purpose  of  raising  money  from  them ;  this  the  king  for- 

1  Registrum,  iv.  275.  2  ibid.,  275-277. 

8  Rot.  i.  Hatfield,  ann.  4,  m.  4  dorse,  curs.  30. 

*  Receipt  roll  of  1307,  Boldon  Book,  App.  xxxiii-xxxiv. 

^  "  Compotus  .  .  .  collectorum  decimae  Domino  Ricardo  .  .  .  Dunel- 
mensi  Episcopo  pro  primo  anno  consecracionis  suae  per  clerum  suum  con- 
cessae  :  "  Scriptores  Tres,  App.  No.  Ixxxvii. 

*  "  Compotus  decimae  annualis  concessae  domino  episcopo :  "  Registrum, 
i.  486;  and  see  Ibid.,  488. 

7  Liber  Rubeus  de  Scaccario,  ii.  750.  ^  Below,  §  38. 


§37]  THE  BISHOP'S  REVENUE,  275 

bade  him  to  do.  Such  action  was  in  harmony  with  Edward's 
policy,  but  the  reason  actually  assigned  for  the  king's  prohibition 
is  very  interesting.  This  taxation,  he  says,  is  unheard  of  within 
legal  memory,  for  the  Bishop  of  Durham  is  earl  palatine,  and  by 
royal  authority  has  temporal  jurisdiction  over  all  his  subjects, 
and  he  and  his  predecessors  have  always  exercised  such  juris- 
diction by  their  own  officers.^  However  disingenuous  the  king 
may  have  been  in  assigning  this  reason,  the  fact  that  he  did  so 
shows  at  least  that  the  Bishop's  claim  to  a  certain  immunity 
from  spiritual  as  well  as  from  temporal  taxation  was  quite 
familiar.  Possibly  some  indulgence  was  shown  to  the  clergy 
of  Durham  in  the  matter  of  general  taxation  when  they  had  paid 
a  special  tax  to  their  Bishop,  but  in  any  case  we  shall  conclude 
that  such  special  taxation  was  infrequent. 

The  regular  revenue  of  the  Bishop  arose  from  his  peculiar 
position  as  temporal  lord.  The  bulk  of  it  was  predial  in  its 
origin,  and  differs  very  little  from  the  ordinary  returns  of  any 
great  medieval  landlord  or  land-owning  corporation.  But,  since 
there  were  other  and  more  interesting  sources  of  income  which 
were  derived  from  the  Bishop's  unique  privileges,  it  will  be 
well  to  examine  the  whole  subject  under  the  convenient,  if 
somewhat  artificial,  arrangement  which  we  followed  in  studying 
the  functions  of  the  Bishop  as  lord  palatine. 

As  supreme  head  of  the  civil  government  in  the  palatinate 
the  Bishop  held  his  limited  right  of  taxation  and  also  a  restricted 
and  even  rudimentary  right  to  take  dues  which  may  be  regarded 
as  half-way  between  tolls  and  customs  duties.  Thus  in  1293  it 
was  reported  that  all  hides  and  fleeces  attempted  to  be  carried 
across  the  bridge  at  Berwick  without  the  seal  of  cocket  —  that  is, 
without  having  paid  customs  duty  —  were  forfeited  to  the  Bishop 
of  Durham ,2  who  held,  as  we  know,  the  southern  bank  of  the 
Tweed  opposite  Berwick.  It  is  a  very  natural  inference  that  if 
the  Bishop  was  entitled  to  the  forfeited  goods,  he  was  equally 

^  Rot.  ii.  Hatfield,  ann.  50  Edw.  Ill,  m.  8,  curs.  31.  The  royal  letter 
appears  here  both  in  French  and  Latin,  but  without  any  important  variations 
between  the  two  versions.  The  Latin  form  is  printed  in  Scriptores  Tres, 
App.  No.  cxxvi. 

2  Plac.  de  Quo  War.,  604. 


2/6  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

entitled  to  a  share  at  least  of  the  dues  which  they  should  have 
paid.  On  the  southern  bank  of  the  Tyne  the  Bishop  might  col- 
lect a  fee  from  every  ship  that  put  to  shore ;  ^  and  he  also  took 
tolls  from  vessels  passing  up  and  down  the  river,  for  one  third  of 
the  stream  was  conceived  to  lie  within  his  royal  liberty .^  In  141 7 
Bishop  Langley  recovered  against  the  mayor  and  commonalty 
of  Newcastle  one  third  of  the  bridge  over  the  Tyne,  together 
with  all  franchises  and  jura  regalia  over  that  portion  of  the 
bridge.^  These  words  undoubtedly  imply  the  right  to  take  tolls 
or  customs  on  merchandise  brought  into  the  palatinate. 

At  the  town  of  Hartlepool,  the  greatest  seaport  of  the  palat- 
inate, the  Bishop  occasionally  levied  customs  duties  on  wool 
and  wine.  His  theoretical  right  was  unquestioned,  but  his 
ability  to  enforce  it  was  hampered  by  the  fact  that  Hartlepool 
was  part  of  the  manor  of  Hart,  which  after  its  forfeiture  by 
Robert  Bruce  was  practically  held  of  the  king.*  In  1334  the 
king  appointed  his  controllers  of  customs  in  Hartlepool,^  but 
this  appointment  was  rescinded  out  of  deference  to  the  Bishop's 
privilege.^  In  1327,  again,  the  king  appointed  officers  and 
searchers  to  carry  out,  in  Hartlepool,  the  new  arrangements 
forbidding  the  exportation  of  plate  and  precious  metals  and  the 
importation  of  counterfeit  money ;  but,  on  the  Bishop's  bringing 
suit  in  the  exchequer,  the  king  admitted  that  he  had  no  right  to 
make  this  appointment,  and  accordingly  revoked  it.^  In  1344 
the  Bishop  appointed  a  chief  butler  {capitalis  pincernd)  for  the 
town  of  Hartlepool;  this  officer  was  to  take  prises  of  wine 
brought  into  that  port,  to  keep  the  gauge  of  wine,  and  to  take 
the  ulnage  of  cloth.^  The  office  was  still  maintained  in  the 
fifteenth  century,  but  it  could  not  have  produced  more  than  an 
occasional  or  a  spasmodic  revenue.    In  1410  the  sheriff  reported 

1  Scriptores  Tres,  App.  No.  xxxv. 

2  Registrum,  ii.  1014-1015,  iv.  334-337. 
8  Scriptores  Tres,  App.  No.  clxxxii. 

*  On  this  question  see  Hutchinson,  Durham,  ii.  521 ;  Surtees,  Durham, 
iii.  99  ff;  Sharpe,  History  of  Hartlepool,  197;  above,  p.  42. 
^  Calendar  of  Patent  Rolls,  1 330-1 334,  p.  545. 

^  Spearman,  Inquiry,  d-'j  (citing  exchequer  records  for  8  Edw.  III). 
■^  Registrum,  iv.  213-215,  221-222,  264-265. 
8  Ibid.,  295-296. 


^37]  THE  BISHOP'S  REVENUE.  277 

that  "  the  ulnage  of  cloth  in  the  wards  of  the  county  of  Durham 
and  the  wapentake  of  Sadberg  produced  nothing  this  year;  nor 
did  the  prises  of  wine  in  Hartlepool  and  elsewhere  because 
no  wines  were  brought  in."  ^  A  similar  account  was  made  in 
1452  in  Norham.2 

The  Bishop  as  head  of  the  civil  government  took  a  certain 
revenue  from  the  municipal  corporations  of  the  palatinate.  In 
the  first  place,  the  burgesses  were  willing  to  pay  for  one  privi- 
lege or  another.  Thus  in  11 30,  when  the  see  was  vacant,  the 
burgesses  of  Durham  paid  five  pounds  "  for  the  plea  of  Eustace 
Fitz-John ;  "  ^  and,  although  by  reason  of  the  absence  of  docu- 
ments we  have  no  record  of  payments  of  this  sort  to  the 
Bishop,  we  can  not  doubt  that  they  were  made.  This  inference 
follows  from  the  fact  that  later  in  the  same  century  the  bur- 
gesses obtained  their  general  charter  from  the  Bishop,*  and 
would  therefore  have  been  obliged  to  turn  for  individual  privi- 
leges to  the  same  source  from  which  their  general  privilege  was 
drawn.  Again,  for  this  and  the  other  municipal  charters  granted 
by  Bishop  Pudsey  the  burgesses  paid  handsomely.  After  the 
boroughs  had  obtained  the  ordinary  burghal  privileges,  one  of 
the  commonest  forms  of  charter  granted  them  contained  leave 
to  take  a  kind  of  octroi,  known  as  murage,  on  merchandise 
brought  into  the  borough.^  The  boroughs  were  also  often  put 
to  farm,  and  thus  rendered  their  various  revenues  in  one  sum. 
In  1307  the  total  amount  from  this  source  (^£\l  is.  gd.}^  was 
for  various  reasons  unusually  small ;  therefore,  since  in  the  same 
year  the  sum  of  ;^I57  13^.  4^.  is  accounted  for  under  the  head  of 
receipts  from  borough  officers,  it  is  to  be  supposed  that  only  a 
few  of  the  boroughs  were  put  to  farm.  In  1387  the  borough  of 
Durham  was  demised  to  a  number  of  persons  for  one  hundred 

1  Sheriff's  account,  A.  D.  141  o,  Auditor  i,  No.  2. 

2  Norham  sheriff's  account,  A.  D.  1452,  Ecclesiastical  Commissioners, 
ministers'  accounts,  189696. 

3  Pipe  Roll  31  Hen.  I,  in  Boldon  Book,  App.  ii. 
*  See  above,  p.  35. 

^  Rot.  ii.  Hatfield,  ann.  33,  m.  13,  curs.  31 ;  Rot.  Fordham,  ann.  3,  m.  4, 
curs.  32;  Rot.  Skirlaw,  ann.  11,  m.  21,  curs.  33;  Rot.  A.  Langley,  ann.  2, 
m.  2,  curs.  34;  Rot.  B.  Langley,  ann.  13,  m.  16  dorse,  curs.  35. 

6  Receipt  roll  of  1307,  Boldon  Book,  App.  xxv-xxxix. 


27$  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

and  twenty  years.  The  farmers  took  over  all  fairs,  markets, 
privileges,  and  profits  of  jurisdiction,  including  the  court  of 
marshalsea,  and  bound  themselves  for  £Z6  13^.  /i^d.,  payable  at 
the  exchequer  in  four  annual  instalments.^ 

The  Bishop  also  derived  revenue  from  the  various  industrial 
corporations  of  the  palatinate.^  Under  this  head  as  well  should 
be  grouped  the  sale  of  privileges  to  individuals  (as,  for  example, 
the  right  to  hold  a  market  or  a  fair)  and  the  correlative  right  of 
the  Bishop  to  institute  quo  warranto  proceedings.^  The  right 
to  forfeitures  of  war  was,  as  we  have  seen,  a  less  profitable 
source  of  revenue  than  might  have  been  supposed,  but  this 
circumstance  was  owing  to  the  cupidity  and  policy  of  the  crown.* 
The  Bishop's  rudimentary  foreign  relations  also  produced  occa- 
sional returns  in  the  shape  of  plunder  and  ransom.^ 

In  this  context  the  subject  of  the  episcopal  mint  may  be  most 
conveniently  considered.  From  the  Norman  Conquest  until 
the  reign  of  Henry  VIII  there  was  a  mint  at  Durham ;  coins 
struck  there  in  the  reigns  of  William  I,  Henry  II,  and  all  suc- 
ceeding kings  except  the  fourth  and  fifth  Henries  have  survived.^ 
These,  however,  are  merely  royal  coins  which  happen  to  have 
been  struck  at  Durham,  for  in  early  times  local  mints  were 
of  common  occurrence,  and  several  of  them,  such  as  those  at 
Winchester,  Canterbury,  and  Durham,  survived."^  At  Durham, 
however,  the  mint  had  a  twofold  character,  issuing  episcopal  as 
well  as  royal  coins.  The  origin  of  this  episcopal  mint  is  very 
obscure.  It  was  not  a  chartered  mint,  like  that  which  the  abbot 
of  Reading  maintained  by  direct  royal  grant,^  but  seems  to  have 
been  first  employed  for  purely  palatine  purposes,  during  the 
anarchy  in  Stephen's   reign,  by   Bishop   Geoffrey   Rufus,  who 

1  Rot.  Fordham,  ann.  5,  m.  8  dorse,  curs.  33. 

2  See  Surtees,  Durham,  iv.  pt.  ii.  20  ff.;  Rot.  ii.  Hatfield,  ann.  28,  m.  5, 
curs.  31  ;  Rot.  v.  Nevill,  ann.  10,  m.  23  dorse,  curs.  46. 

8  See  above,  pp.  34-35,  62. 

^  This  subject  is  dealt  with  circumstantially  above,  §  5. 

5  See  above,  §  5. 

6  Ruding,  Annals  of  the  Coinage  of  Great  Britain,  ii.  164. 

^  Ashley,  Economic  History,  i.  167-169;  Leake,  Historical  Account  of 
English  Money,  65-66,  71,  81,  100. 
8  Leake,  91-92. 


§  37]  THE  BISHOP'S  REVENUE,  279 

supported  Stephen  and  who  may  have  profited  by  the  royal 
favor  to  issue  an  episcopal  coinage.^  This  explanation  is  in  all 
probability  correct,  for  it  is  known  that  the  right  of  coinage  was 
much  coveted  and  freely  usurped  by  the  feudal  nobility  of  this 
period,^  and  that  both  the  king  and  the  empress  countenanced 
what  they  could  not,  or  did  not  care  to,  prevent. 

The  privilege  seems  temporarily  to  have  disappeared  under 
the  general  resumption  of  royal  rights  in  1 154,^  but  it  must  have 
been  revived  soon  afterward,  only  to  be  again  suppressed.  It  is 
recorded  in  11 83  that  the  mint  used  to  render  ten  marks,  but 
that  this  sum  was  reduced  to  three  marks  by  reason  of  the  mint 
which  the  king  had  erected  at  Newcastle.  Eventually  it  was 
quite  abolished  by  the  removal  of  the  dies  from  Durham.* 
Richard  I  revived  the  privilege  of  the  episcopal  mint  in  favor 
of  Bishop  Philip  of  Poitou,^  and  during  the  vacancy  preceding 
that  Bishop's  accession  there  was  a  profitable  '*  cambium  "  or 
exchange,  and  also  in  all  probability  a  certain  amount  of  coinage 
at  Durham.^  During  the  vacancy  in  12 13  the  keepers  of  the 
temporalities  accounted  for  £,^  \2y2d.  "of  the  profit  of  ex- 
change of  one  die  (cambii  unius  cunet)^ '  In  1253  there  seems 
to  have  been  some  question  of  the  Bishop's  title  to  the  privilege 
of  coinage ;  but  after  an  inquest  had  been  taken  and  the  dies  and 
coins  from  old  time  used  and  made  in  Durham  had  been  pro- 
duced, the  Bishop's  right  was  admitted  and  embodied  in  a  charter.^ 

1  Noble,  Two  Dissertations  on  the  Mint  of  the  Episcopal-Palatines  of 
Durham,  Dissert,  i.  5  ff. 

2  Stubbs,  i.  371.  ^  Noble,  Dissert,  i.  5. 

*  Boldon  Book,  1-2.  Ruding  (Annals,  164)  contends  that  the  episcopal 
mint  did  not  exist  prior  to  Henry  II. 

^  Roger  of  Hoveden,  Chronica,  iv.  13. 

6  Pipe  Roll  8  Ric.  I,  in  Boldon  Book,  App.  xii. 

■^  Pipe  Roll  14  John,  Ibid.,  xx.  In  1208  all  the  local  moneyers,  assayers, 
and  die-keepers  were  summoned  to  Winchester,  where  they  surrendered 
their  old  dies  and  received  new  ones  of  a  uniform  type.  See  Ruding 
Annals,  i.  179. 

8  "  Quia  per  testimonium  plurimum  fidedignorum,  et  per  antiquos  cuneos 
coram  nobis  exhibitos,  et  eciam  per  monetam  inde  fabricatam  quam  venera- 
bilis  pater  Walterus  Dunelmensis  Episcopus  coram  nobis  protulit,  accepi- 
mus,"  etc.:  From  an  inspeximus  of  a  charter  dated  12  June,  37  Hen.  Ill, 
on  Rot.  Pat.  11  Hen.  VI,  roll  ii.  m.  22. 


28o  FINANCIAL   ARRANGEMENTS.  [Ch.  VII. 

The  right  was  reaffirmed  by  the  jury  summoned  in  the  quo  war- 
ranto proceedings  in  1293.^ 

This  brings  us  to  the  pontificate  of  Bishop  Bek,  when  we  first 
meet  with  the  evidence  of  the  episcopal  coins  themselves.  Only 
pennies  were  struck  at  Durham,  but  these  were  of  silver  as  well 
as  of  the  baser  metals.^  Coins  of  the  successive  Bishops  from 
the  reign  of  Edward  I  until  that  of  Richard  II  are  in  existence. 
Noble  says  that  during  the  reign  of  Richard  II  no  coins  were 
struck  at  Durham,  but  it  is  more  probable  that  none  of  those 
struck  at  this  period  have  survived  ;  for  in  a  survey  of  the  Eas- 
ington  ward  made  in  1388  it  is  recorded  that  a  certain  house  on 
the  palace  green  at  Durham  was  occupied  by  the  Bishop's  die- 
keeper  (cunator)^  and  that  the  dies  in  the  hands  of  Wulkinus 
de  Florencia,  the  Bishop's  die-keeper,  were  worth  forty  shillings 
annually,  although  formerly  they  had  rendered  twenty  marks.^ 

After  this  the  mint  seems  to  have  fallen  into  disuse  for  a  time, 
for,  as  Noble  puts  it,  it  is  impossible  to  distinguish  between  the 
royal  and  episcopal  coins  struck  at  Durham  during  the  reigns 
of  the  fourth,  fifth,  and  sixth  Henries.  What  probably  hap- 
pened was  that  the  episcopal  coinage  was  altogether  in  abey- 
ance and  that  the  royal  coinage  was  carried  on  very  largely  at 
the  mint  in  York;  for  in  1424  the  Bishop  received  the  text  of 
an  indenture  made  between  the  king  and  a  certain  goldsmith  at 
York,  with  directions  to  publish  it  in  his  liberty.*  This  docu- 
ment was  to  the  effect  that  Bartholomew  Goldbetter  had  been 
appointed  guardian  of  the  king's  exchanges  at  York.^  Barthol- 
omew's duties  consisted  principally  in  the  purchase  of  bullion, 
which  was  transmitted  to  London  to  be  coined,  and  in  the  col- 
lection of  a  seigniorage  of  five  shillings  in  the  pound  gold.  In 
1473  the  episcopal  mint  was  re-established  by  letters  patent  of 
Edward  IV  authorizing  the  Bishop  to  make  coining  irons  for 
pennies  and  half-pennies.^  The  Bishop  at  once  commissioned  a 
certain  goldsmith  at  York  to  make,  under  supervision  of  the 

1  Plac.  de  Quo  War.,  604.  ^  Ruding,  Annals,  ii.  164  ff. 

2  Ecclesiastical  Commissioners,  ministers'  accounts,  220195,  fol.  i- 
*  Rot.  E.  Langley,  ann.  18,  m.  10,  curs.  38. 

5  Rot.  Claus.  2  Hen.  VI,  m.  8  dorse. 

^  Rot.  Pat.  13  Edw.  IV,  printed  in  Foedera  (ed.  1727),  xi.  783. 


§  37]  THE  BISHOP'S  REVENUE.  28 1 

chancellor,  three  dozens  of  trussels  and  two  dozens  of  standards 
for  pennies,  **  necessarye  for  oure  mynte  in  Duresme  .  .  ,  within 
our  castelle  of  Duresme."  ^  Bishop  Booth,  as  it  appears,  intro- 
duced the  custom  of  using  his  initial  instead  of  his  arms,  and  in 
general  modelled  his  coinage  upon  that  of  the  archbishops  of 
York.2 

But  the  privilege  revived  by  Edward  IV  was  of  a  limited 
nature  ;  it  was  quite  lost  during  the  reign  of  Richard  III,  and, 
when  it  reappears  in  that  of  Henry  VII,  it  was  even  further 
restricted  by  the  obligation  imposed  on  the  Bishops  to  take 
their  dies  and  puncheons  from  the  royal  exchequer.^  For  these 
instruments  they  paid  a  yearly  rent  of  four  marks,  as  appears 
from  an  indenture  made  in  1491  between  Bishop  Sherwood  and 
George  Straylle,  a  goldsmith  of  Durham.  The  latter  was  to 
occupy  the  episcopal  mint  for  three  years,  paying  four  marks  per 
annum  to  the  warden  of  the  Tower  of  London  and  discharging 
the  Bishop  of  that  sum.*  This  step  in  the  direction  of  an  as- 
similation of  the  palatine  to  the  royal  mint  is  quite  in  harmony 
with  the  tendency  of  the  times.  The  palatinate  was  already 
something  of  a  survival,  and  the  Bishops  were  insisting  chiefly 
on  those  privileges  that  were  a  source  of  revenue,  with  little 
regard  to  local  independence.  In  particular,  the  English  coin- 
age underwent  considerable  changes  during  the  reign  of  Henry 
VII.  The  pennies  struck  at  Durham  now  bear  the  effigy  of 
the  king  crowned  and  enthroned  and  on  the  reverse  the  arms 
of  France  and  England.  Their  episcopal  character  is  indicated 
only  by  the  presence  of  the  Bishop's  initials  on  the  reverse.^ 
The  mint  at  Durham  thus  practically  lost  its  independence,  but 
it  did  not  at  once  cease  to  exist.  In  a  statute  of  1523  there  is 
a  saving  clause  for  the  mints  of  York,  Canterbury,  and  Dur- 
ham,^ and  during  Wolsey's  occupation  of  the  see  of  Durham 

^  Rot.  ii.  Booth,  ann.  17,  m.  6,  curs.  49;  and  cf.  Rot.  iii.  Booth,  ann.  3, 
m.  2,  curs.  50.     A  trussel  is  a  sort  of  puncheon  or  stamp. 
2  Noble,  Dissert,  ii. 

*  Foedera  (ed.  1727),  xii.  252. 

*  Rot.  iii.  Sherwood,  7  Hen.  VII,  m.  7,  curs.  58. 
^  Noble,  Dissert,  ii. 

®  14-15  Hen.  VIII,  cap.  xii,  Statutes,  iii.  218. 


282  FINANCIAL  ARRANGEMENTS.  [Ch.  VTI. 

a  good  deal  of  silver  seems  to  have  been  coined  there.^  Noble 
believes  that  the  abolition  of  the  local  mint  is  implied  in  the 
terms  of  the  act  of  1536,  by  which  the  palatinate  was  stripped 
of  so  large  a  measure  of  dignity  and  independence;  ^  but  there 
is  nothing  in  the  words  of  the  statute  to  support  this  theory. 
The  view  of  another  writer,^  that  the  Durham  mint  ceased 
without  any  formal  abolition  at  the  close  of  Bishop  Tunstall's 
pontificate  in  1559,  commends  itself  as  highly  probable. 

To  sum  up,  then  :  the  episcopal,  as  opposed  to  the  royal,  mint 
at  Durham  appears  at  some  undetermined  point  in  the  twelfth 
century,  but  there  is  only  documentary  evidence  of  its  existence 
until  the  pontificate  of  Bishop  Bek,  1284-13 1 1.  From  that  period 
until  after  the  Reformation,  with  a  long  interruption  in  the  fif- 
teenth century,  the  Bishops  maintain  their  mint  at  Durham  ; 
but  no  gold  is  coined  there,  nor  any  coins  above  the  denom- 
ination of  a  penny.  The  palatine  mint  has  its  greatest  his- 
torical importance  as  a  source  of  revenue  rather  than  as  an 
attribute  of  the  Bishop's  sovereignty.  Although,  as  Noble  tells 
us,  the  Bishops,  "  desirous  of  acquainting  posterity  that  they 
enjoyed  this  sovereign  privilege"  {i,  e.  the  right  of  coinage), 
placed  their  arms  or  some  other  particular  device  on  their  coins,* 
on  the  other  hand,  the  constant  royal  supervision  of  the  palatine 
mint  and  the  king's  frequent  interference  with  it  show  that  it 
was  not  a  well-developed  attribute  of  sovereignty.  Doubtless, 
too,  the  Bishops  of  Durham,  like  other  medieval  lords,  were  far 
more  intent  on  the  immediate  advantage  of  increased  revenue 
than  on  the  admiration  of  posterity.^ 

We  pass  now  to  the  revenues  which  accrued  to  the  Bishop 
from  his  position  in  dominio,  or  as  supreme  landlord  of  the  palat- 

^  See  Wolsey's  letter  from  his  chancellor  on  this  subject,  in  Fiddes,  Life 
of  Wolsey,  pt.  ii.  206-209. 

2  27  Hen.  VIII,  cap.  xiv,  Statutes,  iii.  555. 

8  Ruding,  Annals,  170. 

*  Noble,  Dissert,  i. 

^  Besides  the  works  of  Noble  and  Ruding,  there  is  an  essay  by  B.  Bart- 
let,  "  The  Episcopal  Coins  of  Durham  and  the  Monastic  Coins  of  Read- 
ing," in  Archaelogia,  1778,  v.  335,  reprinted  by  J.  T.  Brockett  (Newcastle, 
181 7).  This  contains  a  few  minor  details  not  included  in  the  account  given 
above. 


§37]  THE  BISHOP'S  REVENUE.  283 

inate.  These,  with  a  few  interesting  exceptions,  differ  only  in 
degree  from  ordinary  manorial  returns  and  the  profitable  inci- 
dents of  feudal  tenure  enjoyed  by  any  other  great  tenant-in-chief. 
In  the  latter  group,  however,  the  Bishop  possessed  certain  pecu- 
liarly royal  advantages,  such  as  the  right  to  take  primer  seisin 
and  to  have  custody  of  the  lands  of  idiots,  but  these,  with 
the  ordinary  feudal  incidents,  have  already  been  considered  in 
another  place.^  The  manorial  returns  were  chiefly  in  kind, 
in  stock,  corn,  wool,  hay,  cheese,  hens,  eggs,  and  the  like  ; 
these  were  sold,  and  the  profits  were  accounted  for  at  the 
exchequer.^ 

One  of  the  most  profitable  sources  of  the  Bishop's  revenue 
under  this  category  consisted  in  the  mines  of  iron,  lead,  and 
coals  with  which  the  county  of  Durham  has  always  abounded. 
Already  in  the  twelfth  century  we  hear  something  of  the  mines 
of  Durham.  King  Stephen  seems  to  have  possessed  a  mine, 
probably  of  iron,  which  he  granted  to  Bishop  Pudsey  between 
1 152  and  1154.^  Soon  after  this  period  Laurence,  prior  of  Dur- 
ham, had  much  to  say,  in  somewhat  mediocre  verse,  of  the  min- 
eral wealth  of  his  native  county  :  — 

" saxa  Dunelmia  venas 

Innumeri  varias  aeris  habere  solent."  * 

Later  he  tells  us  that  the  Bishop  took  annually  three  great  talents 
of  silver.^  This  statement  is  not  improbable,  for  silver  is  known 
to  occur  frequently  in  connection  with  lead,  and  the  lead  mines 
of  the  Weardale  were  rich  and  plentiful.  In  1 197  the  keepers  of 
the  bishopric  spent  forty-three  pounds  and  a  fraction  in  the  pur- 
chase and  smelting  of  lead  ore,  and  accounted  for  forty  pounds 
profit  on  the  transaction.^     In  the  accounts  for  I2ii-i2i3the 

1  Above,  §  6. 

2  Pipe  Rolls  8  Ric.  I,  and  13-14  John,  in  Boldon  Book,  App.  iii-xxiv; 
receipt  roll  of  1307,  Ibid.,  xxv-xxxiv;  see  also  Ibid.,  passim.  In  1461  the 
receiver-general  accounted  for  the  expenses  of  driving  cattle,  taken  from 
various  tenants  "pro  firmis  suis."  See  Ecclesiastical  Commissioners,  min- 
isters' accounts,  1898 16. 

3  Scriptores  Tres,  App.  No.  xxvii. 

*  Laurentius  Dunelmensis,  Dialogi  (Surtees  Soc),  lib.  ii.  lines  109-110. 
s  Ibid.,  line  169.  «  Pipe  Roll  8  Ric.  I,  in  Boldon  Book,  App.  xii. 


284  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

sale  of  iron  reappears  frequently,  but  it  is  difficult  to  determine 
the  exact  amounts  realized,  for  the  iron  is  usually  associated  with 
some  other  product.^  This  is  also  true  of  the  farm  of  mines 
accounted  for  in  Bishop  Bek's  receipt  roll  of  1307.^  In  1393  the 
receiver-general  of  Durham  accounted  for;^3i2  from  the  mayor 
of  Newcastle  for  two  hundred  and  sixty  "  keles  "  or  barges  of 
coals  furnished  by  the  Bishop.^  This  industry  flourished  in  the 
fifteenth  century,  and  the  account  rolls  of  the  appruatores,  or 
superintendents,  of  the  Bishop's  coal-mines  at  Whickham  and 
in  the  Weardale  show  that  a  considerable  revenue  was  drawn 
from  this  quarter.*  The  iron  of  the  Weardale  was  a  staple 
medieval  product  and  seems  to  have  compared  favorably  with 
that  produced  in  Sussex  or  in  the  forest  of  Dean,  although  it 
was  inferior  of  course  to  the  Spanish  metal.^  In  1409  a  single 
forge  in  the  Weardale  produced  4184  stone  of  wrought  iron,^  and 
in  1433  four  mines  farmed  to  Sir  William  Eure  yielded  ^112 
13^.  4^.  annually.''  The  mining  of  lead  was  also  a  fertile  source 
of  revenue  to  the  Bishop.  In  1426  the  superintendent  of  the 
lead  mines  accounted  for  production  to  the  value  of  ;^I96  5^.  \od. ; 
the  greater  part  of  the  metal  had  been  sent  to  the  Bishop's  agent 
in  London,  who  sold  it  and  applied  the  proceeds  to  the  purchase 
of  various  articles  required  by  his  master,  such  as  vestments  and 
ecclesiastical  plate  and  jewels.^    In  1535  the  king's  commission- 

1  Pipe  Roll  13-14  John,  in  Boldon  Book,  App.  xii-xxiv. 
'^  Ibid.,  xxv-xxxiv. 

2  Rot.  Skirlaw^  ann.  5,  m.  9  dorse,  curs.  33. 

*  Accounts  of  this  sort  exist  for  the  years  1458-1461,  1467-1468,  1476- 
1477,  1500,  1509;  these  are  in  English  and  Latin,  and  give  a  great  deal  of 
useful  and  interesting  information.  See  Ecclesiastical  Commissioners,  min- 
isters' accounts,  190022-190028  inclusive. 

5  Rogers,  History  of  Prices,  iv.  398-399,  and  see  Ibid.,  index,  s.  v.  "  Iron." 
In  1 461  the  constable  of  Durham  purchased  Spanish  iron  for  certain  partic- 
ular purposes  in  the  castle.  See  receiver-general's  account,  Ecclesiastical 
Commissioners,  ministers'  accounts,  189816. 

^  See  the  account  of  John  Dalton,  keeper  of  the  Bishop's  forge  at  Byrke- 
knott,  Auditor  5,  No.  149,  printed  in  the  English  Historical  Review,  xiv.  509 fiE. 

'  Rot.  DD.  Langley,  ann.  27,  m.  7,  curs.  yj. 

*  These  two  accounts  are  Ecclesiastical  Commissioners,  ministers*  ac- 
counts, 190013-190014.  They  are  full  of  circumstantial  information  with 
regard  to  the  methods  of  mining  and  smelting  lead  and  the  prices  of  the 


§37]  THE  BISHOP'S  REVENUE.  285 

ers  reported  that  the  annual  value  of  the  farm  of  the  coal,  lead, 
and  iron  mines  of  the  Bishop  of  Durham  was  ;^i85.^  In  1831 
the  manorial  returns  of  the  see  for  three  years,  including  mines 
and  quarries,  amounted  to  ;^30ii.^ 

The  question  of  the  sources  of  the  Bishop's  feudal  revenue 
presents  several  points  that  require  particular  attention.  The 
first  of  these  is  the  matter  of  scutage.  Arguing  from  the  general 
theory  of  the  Bishop's  status  qua  king,  we  should  be  inclined  to 
predicate  that,  although  the  king  as  overlord  might  indeed  take 
scutage  from  the  Bishop  himself,  he  could  neither  require  this 
payment  from  the  Bishop's  military  tenants  nor  yet  prevent  the 
Bishop  from  so  doing.  Let  us  see  how  far  this  theory  will  hold, 
if  indeed  it  holds  at  all.  In  the  first  place  it  must  be  noted 
that  the  great  honors  and  franchises,  and  even  the  honor  of  Wal- 
lingford,  paid  scutage  in  the  twelfth  and  thirteenth  centuries.^ 
In  the  thirteenth  century  even  the  county  palatine  of  Chester 
paid  it.*  In  1156  the  Bishop  of  Durham  paid  ten  pounds  as  scu- 
tage for  ten  knights*  fees  ;  ^  and,  when  a  similar  payment  was 
required  in  11 58,  he  gave  ;£'333  6s.  Zd.  as  a  gift,  and  his  knights 
contributed  twenty  marks,  for  all  of  which  the  sheriff  of  York- 
shire accounted.^  In  11 60  the  Bishop  paid  twenty  marks  for 
ten  knights'  fees,^  one  mark  for  the  same  in  1161,^  and  ten 
marks  again  in  11 67,  although  in  this  year  he  was  charged  with 
a  larger  sum  for  certain  fees,  for  which  he  denied  that  he  was 

articles  of  luxury  purchased  for  the  Bishop.  See  also  Rot.  DD.  Langley, 
ann.  24,  m.  2  dorse,  curs.  37  ;  Ecclesiastical  Commissioners,  ministers'  ac- 
counts, 1 900 1 2,  1 900 1 5-1 9002 1. 

1  See  Valor  Ecclesiasticus,  v.  299. 

2  Report  of  the  Commissioners  on  Ecclesiastical  Revenue,  in  Pari. 
Papers,  1835,  ^^^'  ^^ii* 

3  See  the  Rotulus  Honorium  for  11 86-1 187,  in  the  Liber  Rubeusde  Scac- 
cario,  i.  68-70.  In  1208  the  earl  of  Chester  accounted  for  half  of  the  scutage 
of  the  honor  of  Richmond  (Ibid.,  ii.  749)  ;  and  the  following  note  of  Swere- 
ford,  the  compiler  of  the  Red  Book,  expresses  the  general  principle :  "  Nota 
quod  in  ii  rotulo  Regis  Johannis  in  diversis  comitatibus  amerciati  sunt  multi, 
et  nullae  allocantur  libertates  quia  omnes  redduntur  in  Thesauro  "  (Ibid.,  ii. 

747). 

*  Ibid.,  i.  184-185.  ^  Ibid.,  15.  «  Ibid.,  19. 

'  Ibid.,  26.  ^  8  Ibid.,  28. 


286  FINANCIAL   ARRANGEMENTS.  [Ch.  VII. 

responsible.!  In  1171  he  paid  ten  pounds,^  but  apparently  he 
was  not  charged  in  1 186,  or  again  in  1 190.^  During  the  vacancy 
in  1 196  a  scutage  of  ten  pounds,  together  with  the  larger  sum 
repudiated  by  the  Bishop,  was  raised  in  the  bishopric,^  being 
paid  by  the  lesser  barons  through  the  keepers  and  by  the  greater 
ones  individually.^  In  1 199  the  new  Bishop  paid  twenty  marks ;  ^ 
but  from  the  scutage  raised  between  1201  and  1212  he  was  re- 
leased by  writ,  although  the  sheriff  of  Northumberland  reported 
that  he  had  ten  knights'  fees  in  the  wapentake  of  SadbergJ 

Henry  II  early  in  his  reign  required  of  each  of  his  feudal  ten- 
ants a  detailed  statement  of  the  number  of  knights'  fees  held 
of  him  and  of  the  terms  upon  which  they  were  held.  Bishop 
Pudsey,  in  his  answer  to  this  demand,  reported  the  number  of 
knights'  fees  held  of  him  by  old  and  new  feoffment  in  York- 
shire, Lincolnshire,  and  "  the  lordship  of  the  blessed  Cuthbert " ; 
on  his  own  demesne,  he  says,  there  are  no  knights'  fees,  and  in 
respect  to  all  the  fees  enumerated  in  the  report  he  is  responsible 
to  the  king  for  the  service  of  ten  knights.^  Now  it  is  a  curious 
fact  that  in  the  scutage  of  1201  the  Bishop  is  held  responsible 
for  ten  knights'  fees,  which  are  reckoned  as  of  the  wapentake  of 
Sadberg,  for  this  corner  of  the  palatinate  was  acquired  by  ex- 
change and  purchase  from  Richard  I,  and  the  transaction  is 
therefore  within  legal  memory.^  The  wapentake,  moreover, 
when  Pudsey  acquired  it,  contained  but  two  and  a  fraction 
knights'  fees.!^  How,  then,  were  these  consolidated  with  the  ten 
fees  in  the  lands  of  S.  Cuthbert  for  which  the  Bishop  was 
already  answerable,  and  the  whole  charged  as  ten  fees  in 
Sadberg?     With  our  present  information,  that  question  cannot 

^  Liber  Rubeus  de  Scaccario,  i.  40. 

2  Ibid.,  53.  3  Ibid.,  62-70.  *  Ibid.,  117. 

^  Pipe  Roll  8  Ric.  I,  in  Boldon  Book,  App.  viii-ix. 

*  Liber  Rubeus  de  Scaccario,  i.  130. 

'  Ibid.,  i.  164,  ii.  606. 

^  "  Super  dominium  vero  nostrum,  de  quo  similiter  mandare  praecepistis, 
nulla  sunt  feoda  militum  nee  ulla  debemus.  Nam  de  hiis  omnibus,  quos 
supra  diximus,  servitium  x  militum  tantum  vobis  debemus.  Valeat  dominus 
mens  "  (Ibid.,  i.  416-418).     On  this  point,  see  Pollock  and  Maitland,  i.  241. 

®  Coldingham,  caps,  ix-x,  in  Scriptores  Tres,  14-15. 

i<>  Scriptores  Tres,  App.  Nos.  xl-xli. 


§37]  THE  BISHOP'S  REVENUE.  287 

be  answered.  It  is  clear  that  in  respect  to  the  king  the  Bishop 
of  Durham  was  treated  Hke  any  other  feudal  tenant ;  but  it  is 
difficult  to  determine  what  method  would  have  been  used  to  dis- 
train for  scutage,  since  the  king  acknowledged  that  his  officers 
might  not  enter  the  palatinate.  In  respect  to  the  Bishop's  right 
to  levy  scutage  of  his  feudal  tenants,  it  may  be  said  that  by 
once  obtaining  the  king's  licence  for  this  purpose  the  Bishop 
acknowledged  his  inability  to  raise  such  a  scutage.  But  the 
question  is  obscure,  and  the  palatine  accounts  do  not  begin  until 
the  era  of  scutages  is  over.^ 

The  question  of  the  distraint  of  knighthood,  which  was  per- 
haps as  much  a  military  as  a  financial  measure,  may  be  most 
conveniently  treated  at  this  point,  for  the  military  necessities 
of  the  palatinate  were  only  occasional,  while  the  demand  for 
revenue  was  constant.  Although  the  practice  of  forcing  the 
assumption  of  knighthood  on  all  persons  of  a  certain  property 
qualification  first  appeared  in  England  in  1224,  it  did  not  as- 
sume great  importance  until  1278.^  In  that  year  the  sheriffs 
were  directed  to  force  all  persons  having  twenty  librates  of  land,  or 
a  knight's  fee  of  equivalent  value,  to  assume  the  order  of  knight- 
hood. This  rule,  which  was  to  be  enforced  by  distraint,  was 
applicable  not  only  to  tenants-in-chief  but  to  all  persons  having 
the  requisite  amount  of  land,  of  whomsoever  they  held.^  Which- 
ever horn  of  this  dilemma  might  be  chosen,  the  result  was  the 
same  to  the  king,  for  there  were  fees  for  the  reception  of  knight- 
hood and  fines  for  a  refusal  to  assume  the  order. 

There  is  no  illustration  of  the  way  in  which  this  measure  was 
applied  in  the  palatinate,  but  later  evidence  points  emphatically 
to  the  conclusion  that  the  Bishop,  tacitly  assuming  his  royal 
right,  proceeded  on  his  own  behalf  to  enforce  the  new  regulation 
in  his  province.  In  1337,  Bishop  Bury  represented  to  the  king 
that,  in  spite  of  his  acknowledged  right  to  have  jura  regalia  in 
the  bishopric,  he  had  been  directed  by  a  royal  writ  under  the 
seal  of  the  exchequer  to  enforce  the  assumption  of  knighthood  on 

1  Rot.  Lit.  Claus.,  8  Hen.  Ill,  i.  579;  Pollock  and  Maitland,  i.  232  note. 
^  Stubbs,   Constitutional   History,   ii.   305-307,     and    Select    Charters, 

456-457. 

8  Stubbs,  Select  Charters,  457. 


2iiS  FINANCIAL  ARRANGEMENTS,  [Ch.  VII. 

certain  of  his  subjects,  and  in  the  event  of  their  refusal  to  produce 
them  at  the  exchequer  to  answer  to  the  king ;  and  this  in  spite  of 
the  fact  that  by  reason  of  his  privilege  the  Bishop  was  entitled 
to  cognizance  of  matters  of  this  sort  and  to  the  fees  and  profits 
arising  from  them  in  the  bishopric.  The  king  then  directed  the 
barons  of  the  exchequer  to  hear  and  examine  the  bishop's  evi- 
dence, and,  if  it  proved  satisfactory,  to  drop  all  further  action  in 
the  matter.^  Apparently  no  satisfactory  conclusion  was  reached, 
for  in  1346  we  find  the  Bishop  petitioning  again,  representing 
that  by  reason  of  his  regality  he  has  the  right  to  distrain  his  sub- 
jects to  assume  knighthood  and  to  take  himself  all  issues  and 
profits  arising  from  this  process ;  and  that  he  and  his  prede- 
cessors had  always  enjoyed  this  privilege  until  the  present  writ 
issued  out  of  the  exchequer.  The  king  directed  that  the  writ 
be  suspended  until  the  Bishop's  claim  could  be  examined,^  and 
there  the  matter  ends.  When  it  reappears  in  the  documents  in 
1534  there  is  no  longer  any  question  of  the  Bishop's  rights  ;  he 
transmits  to  his  sheriff  the  king's  writ  directing  all  persons,  as 
well  within  liberties  as  without,  having  forty  pounds  a  year,  to 
take  up  the  order  of  knighthood  before  a  certain  date,  and 
enjoins  the  sheriff  to  execute  it  in  the  palatinate.^  Although 
properly  treated  under  the  head  of  revenue,  the  real  interest  of 
this  matter  lies  in  the  attitude  of  the  Bishops  toward  their 
regality,  to  which  they  attributed  all  the  potentialities  of  develop- 
ment latent  in  the  crown. 

Another  interesting  point  that  appears  to  be  pecuHar  to  the 
bishopric,  or  at  least  to  the  northern  counties,  is  the  nature  of 
the  payments  made  for  cornage.  These  payments  appear  first 
in  the  year  1 130,  when,  during  the  vacancy  of  the  see,  the  keeper 
of  the  temporalities  accounted  for  ;^iio  <^s.  ^d.  "for  the  cornage 
of  cattle,"  and  the  same  sum  for  **the  cornage  of  animals."*  Iti 
Boldon  Book  it  is  recorded  that  "  two  vills  render  30J.  for  cor- 
nage,"^ that  "the  vill  of  Shotton  renders  11^.  for  cornage,"^ 

^  Registrum,  iv.  211-212;  printed  also  in  Foedera,  ii.  pt.  ii,  961-962. 

2  Registrum,  iv.  265-266. 

8  Rot.  ii.  Tunstall,  ann.  4,  m.  3  dorse,  curs.  78. 

^  Pipe  Roll  31  Hen.  I,  in  Boldon  Book,  App.  i-ii. 

fi  Boldon  Book,  8.  «  Ibid.,  9. 


§37]  THE  BISHOP'S  REVENUE.  289 

*'  Queringdonshire  renders  78^.  forcornage,"  ^  and  soon.^  This 
item  does  not  figure  in  the  account  of  the  bishopric  during  the 
vacancy  of  1 196,  or  during  that  of  1208-12 13  ;  but  it  reappears  in 
1307,  when  the  receiver-general  accounts  forcornage  in  the  four 
wards  to  the  amount  of  ;^28  145.  4^.  ;^  but  in  the  fifteenth  cen- 
tury it  has  quite  disappeared .  Ly ttleton  thought  that  cornage  was 
a  tenure  by  the  service  of  winding  a  horn  to  give  notice  of  the 
approach  of  an  invading  army,  and  was  peculiar  to  the  Scottish 
borders^  This  fantastic  definition  long  satisfied  the  legal  mind.^ 
Canon  Greenwell,  the  editor  of  Boldon  Book,  believes,  however, 
that  cornage  was  a  tenure  involving  an  annual  payment  of  cattle, 
but  commuted  at  some  period  earlier  than  the  Conquest  to  a 
money  payment.^  This  view,  in  so  far  as  it  defines  cornage  as  a 
tenure  conditioned  by  the  possession  of  cattle,  seems  now  to  be 
generally  accepted.  Mr.  Seebohm  regards  cornage  as  a  tribute 
either  for  the  possession  of  cattle  or  for  the  right  of  grazing 
them,  and  holds  it  to  be  incidental  to  the  tenure  of  a  share  of 
arable  land.^  Professor  Maitland  has  much  of  interest  to  say  on 
various  aspects  of  this  subject,  but  accepts  on  the  whole  Mr.  See- 
bohm's  doctrine.^  Finally,  Mr.  Hubert  Hall,  who  has  had  the 
latest  word  on  the  subject,  seems  to  connect  cornage  with  the 
duty  of  military  service  as  based  on  wealth  in  the  possession 
of  cattle.^  The  question  is  full  of  interest,  but  a  discussion  of 
it  does  not  fall  within  the  province  of  the  present  work. 

This  limitation  must  also  apply  to  the  interesting  question 
raised  by  an  entry,  in  the  pipe  roll  of  11 30,  of  certain  payments 
from  the  thegns,  drengs,  and  smalmen  between  Tyne  and  Tees. 
These  terms  recur  from  time  to  time  in  the  earlier  records  of  the 

1  Boldon  Book,  10.  2  ibid.,  11,  12,  13,  14,  etc. 

3  Receipt  roll  of  1307,  Boldon  Book,  App.  xxviii. 

*  Lyttleton,  Tenures,  §  156. 

^  See  Spelman,  Glossarium,  s.  v.  "  Cornagium." 

^  Boldon  Book,  glossary,  s.  v.  "  Cornagium,"  and  App.  Iv-lvi. 

■^  Seebohm,  Village  Community,  71. 

^  "  Cornage  .  .  .  must  in  all  probability  originally  have  been  a  payment 
of  so  much  per  horn,  or  per  head  for  the  beasts  which  the  tenant  kept  and 
turned  out  on  the  common  pasture :  "  Maitland,  in  English  Historical  Re- 
view, V.  627;  see  also  his  Domesday  Book  and  Beyond,  147. 

^  Liber  Rubeus  de  Scaccario,  ii.  Preface,  245  ff. 

19 


290  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

palatinate,  and  seem  to  refer  to  certain  ancient  forms  of  tenure 
already  considered  obsolete  in  the  twelfth  century.^ 

We  pass  now  to  those  revenues  which  the  Bishop  derived  from 
his  position  in  juris dictione.  We  have  already  dealt  with  this 
subject  in  considering  the  growth  of  the  palatine  judiciary,  and 
have  pointed  out  the  intimate  connection  between  jurisdiction 
and  revenue  in  early  times.^  During  the  vacancy  of  the  see  in 
1 1 30  the  sum  of  two  pounds  was  paid  by  the  archdeacon  of 
Durham  for  a  plea  of  his  men,  and  small  sums  were  also  paid  by 
Clibert  and  Gamel  the  clerk  for  the  duel  of  their  men,  by  Hugh 
the  man  of  Walter  for  the  plea  of  his  sister,  and  by  the  burgesses 
of  Durham  for  the  plea  of  Eustace  Fitz-John,  the  whole  reach- 
ing a  total  of  fourteen  pounds.^  In  11 97  the  pleas  and  perqui- 
sites of  the  county,  together  with  the  sale  of  the  chattels  of  a  felon, 
of  a  Jew,  and  of  several  fugitives,  produced  in  all  ;£i63  19^.  \d.^ 
For  the  years  between  1208  and  121 1  the  pleas  and  perquisites 
produced  £,\^Ji  15^.  3^.,  and  there  is  also  a  payment  of  one 
hundred  marks  for  the  court  of  Durham,  and  another  of  ten 
marks  made  by  one  man  for  the  plea  of  another.^  In  the  follow- 
ing year  the  sum  of;£3i3  175.  3</.  is  accounted  for  under  the 
head  of  fines,  pleas,  and  perquisites.^  The  care  with  which  the 
profits  arising  from  the  jurisdiction  of  the  Bishop  over  the  prior's 
men  were  distributed  between  the  Bishop  and  the  prior  in  1229 
shows  how  important  an  item  this  was  in  the  episcopal  revenue.^ 
In  1307,  when  the  temporalities  had  been  but  recently  returned 
to  the  Bishop,  there  were  no  profits  from  the  sessions  of  the  jus- 
tices or  from  the  sale  of  writs ;  ^  but  the  two  tourns  of  the  sheriff 

1  On  the  smalmen  see  Pipe  Roll  31  Hen.  I,  in  Boldon  Book,  App.  ii; 
Ibid.,  5,  and  App.  Ixiii ;  Ashley,  Economic  History,  i.  23;  Ducange,  Glos- 
sarium,  s.  v.  "  Smalman."  On  the  thegns  and  drengs  see  Feodarium,  98, 
121,  157;  Boldon  Book,  16,  17,  19,20,  26,  36,  y]  \  Maitland,  Northumbrian 
Tenures,  in  English  Historical  Review,  v.  625-632;  Maitland,  Domesday 
Book  and  Beyond,  307-309;  Pollock  and  Maitland,  i.  258,  315. 

2  Above,  §§  16-17. 

3  Pipe  Roll  31  Hen.  I,  in  Boldon  Book,  App.  i-iii. 

4  Pipe  Roll  8  Ric.  I,  Ibid.,  iii-xiii. 
^  Pipe  Roll  13  John,  Ibid.,  xiii-xx. 
^  Pipe  Roll  14  John,  Ibid.,  xx-xxiv. 

'  Le  Convenit,  in  Feodarium,  212-217;  above,  p.  169. 
8  Receipt  roll  of  1307,  Boldon  Book,  App.  xxxi. 


§  37]  THE  BISHOP'S  REVENUE.  291 

produced  ;£ 23 1  9^.,  and  the  returns  of  the  county  court  of  Sad- 
berg  must  be  imbedded  in  the  farm  of  the  wapentake,  which 
amounted  tO;^39  15^.  \\d. 

In  this  class  of  revenues  should  also  be  included  a  forfeiture  of 
nine  pounds  made  before  the  king's  marshal  in  the  Bishop's 
court.i  In  1336  the  profits  of  jurisdiction  accounted  for  by  the 
sheriff  amounted  tO;^37  los,  i  id.,  and  included  the  amercements 
of  the  county,  fines  for  suit  of  court,  the  sale  of  the  chattels  of 
felons  and  deodands,  the  profits  of  the  court  of  marshalsea,  and 
the  assize  of  false  measure.^  The  profits  of  the  central  courts 
did  not  always  pass  through  the  sheriff's  hands.  In  1410  the 
sheriff  accounted  for  £2^  6s.  2d.,  which  included,  besides  the 
items  noted  in  the  earlier  account,  the  fines  and  amercements 
incurred  before  the  justices  of  the  peace  and  those  commissioned 
to  execute  the  statute  of  laborers  ;  but  "  the  estreats  of  the  jus- 
tices of  gaol-delivery  and  oyer  and  terminer  were  paid  into 
chancery,  and  the  chancellor  is  responsible  for  them."  ^  Very 
little  revenue  was  taken  from  the  courts  in  the  outlying  district 
of  Norhamshire,  for  the  sessions  of  the  justices  there  appear  fre- 
quently to  have  been  omitted.*  In  1535  the  profits  of  jurisdiction 
in  Durham  amounted  only  to  555-.  \od.\  all  the  usual  sources 
are  noted,  but  under  the  majority  of  them  are  the  words  "  nichil 
hoc  anno."  ^  After  1537,  as  we  have  seen,  the  legal  business  of 
the  bishopric  was  to  a  great  extent  taken  over  by  the  Council 
of  the  North.^  The  sale  of  writs,  pardons,  exemptions  from 
jury  duty,  and  mortmain  licences,  all  of  which  fall  under  the 
head  of  judicial  revenue,  must  considerably  have  increased 
the   Bishop's   income;    there  are   no   means,   however,  of  de- 

^  Receipt  roll  of  1307,  Boldon  Book,  App.  xxv-xxxiv. 

2  Auditor  i,  No.  i. 

8  Auditor  i,  No.  2.  The  closeness  with  which  this  sourceof  revenue  was 
watched  appears  from  the  circumstance  that  against  the  entry,  under  the  head 
of  marshalsea,  where  the  sheriff  has  noted  "  nothing  because  there  was  none 
held  this  year,"  the  auditors  have  written,  "  let  it  be  held  next  year  on  pain  of 
forfeiture  of  his  salary." 

*  Norham  sheriffs'  accounts,  A.  D.  1423,  1452,  Auditor  i,  No.  3;  Ecclesi- 
astical Commissioners,  ministers'  accounts,  189696. 

5  Sheriff's  account,  A.  D.  1535,  Auditor  i,  No.  40. 
-     ®  See  above,  §  35. 


292  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

termining  even  approximately  the  annual  returns  from  these 
sources.^ 

It  is  now  time  to  form  some  idea  of  the  amount  of  the  Bishop's 
revenue.  The  total  sum  accounted  for  in  1130  is  ;£  145 2  \2s, 
^d.^  but  as  Ranulf  Flambard  had  died  in  September,  1128,^  this 
account  is  for  a  period  of  two  years.  An  examination  of  the 
account  shows  that  a  certain  amount  of  restocking  and  general 
improvement  had  taken  place,  and  that  the  farms  of  the  bishop- 
ric and  the  episcopal  manors  had  appreciated  in  the  second  year. 
Therefore,  by  averaging  the  farm  of  the  bishopric  in  each  year 
with  the  constant  payments,  such  as  cornage,  and  adding  one 
half  the  sum  of  the  incidental  payments,  which  cannot  be  accu- 
rately assigned  to  either  year,  we  obtain  as  the  approximate 
revenue  for  the  first  year  ;^633  \Zs.  \d.y  and  for  the  second  year 
j^809  10^.  2d. 

During  the  next  vacancy,  which  occurred  in  1197,  the  gross 
revenue  of  the  bishopric  while  it  was  in  the  king's  hand  amounted 
to  ;£'5058  \6s.  y^d.  This  sum  for  less  than  one  year  is  undoubt- 
edly abnormal,  but  its  size  may  be  partly  accounted  for  by  the 
fact  that  Bishop  Pudsey,  who  at  the  time  of  his  death  was  in  the 
king's  debt  for  the  district  of  Sadberg,  which  he  had  purchased, 
had  left  directions  that  his  obligation  should  be  discharged.  For 
this  purpose  a  considerable  sum  — ;£438  6d.  —  was  raised  from 
the  Bishop's  feudal  tenants,  and  a  tallage  was  taken  from  the 
manors  and  boroughs  of  the  bishopric*  The  gross  revenue  from 
1208  until  121 1  was  ;^i6,787  14^.  lO^id.^  which  gives  an  aver- 
age annual  return  of  ;£5595  18^.  Z)id.\  but  this  is  probably 
larger  than  the  Bishop's  regular  income,  because  of  the  consid- 

^  See  above,  pp.  68-74.  A  roll  for  the  first  year  of  Bishop  Langley,  1406, 
contains  a  tariff  of  writs  ;  novel  disseisin  cost  20^.,  covenant  is.^  trespass  from 
lod.  to  3^-.,  cui  in  vita  2od.,  etc.  Rot.  B.  Langley,  ann.  i,  m.  i,  curs.  35. 
These  figures  of  course  do  not  permit  us  to  form  any  notion  of  the  ratio  of  com- 
parison between  this  and  other  sources  of  revenue. 

2  Pipe  Roll  31  Hen.  I,  in  Boldon  Book,  App.  i-iii. 

^  Stubbs,  Registrum  Sacrum  Anglicanum  (1897),  41. 

^  Pipe  Roll  8  Ric.  I,  in  Boldon  Book,  App.  iii-xiii.  On  the  Bishop's  debt 
see  Coldingham,  cap.  x,  in  Scriptores  Tres,  15:  "  Jussit  praeterea  Regi  ii 
mille  marcas,  quas  pro  Sathbergia  et  aliis  dignitatibus  promiserat,  solui." 

fi  Pipe  Roll  13  John,  in  Boldon  Book,  App.  xvi. 


§37]  THE  BISHOP'S  REVENUE.  293 

erable  sums  taken  at  this  period  in  the  form  of  fines  for  one  priv- 
ilege or  another.^  The  returns  for  the  following  year  were  ;£"2650 
\os.  6y2d,y^  and  this  appears  to  have  been  the  normal  revenue. 

In  1307  the  gross  receipts  had  risen  again  to  £s^9S  V^d.?  but 
Bishop  Bek's  great  demands  and  increased  resources  will  account 
for  this  change.  No  doubt  much  pressure  was  exerted  by  this 
magnificent  prelate,  who  is  said  to  have  been  called  at  Rome 
pecuniae  inimicus\  *  besides,  in  this  year  the  outlying  districts  of 
the  palatinate,  including  the  Isle  of  Man,  which  the  Bishop  held 
for  the  term  of  his  life,  contributed  the  handsome  sum  of  ^^  1293 
55.  yid.  In  the  taxation  of  Pope  Nicholas  the  Bishop's  temporal- 
ities were  valued  at;^2666  13^.  4^.,^  and  these  figures  no  doubt 
represent  the  normal  revenue  of  the  medieval  Bishops.  It  was 
indeed  a  very  considerable  sum,  exceeding  the  income  of  any 
other  English  prelate  except  the  bishop  of  Winchester,  whose 
temporaUties  amounted  to£2g'j'j  i^s.  lod.,^  and  comparing  favor- 
ably with  the  regular  royal  receipts,  which  in  1300  were  ;^58,i55 
i6s.  2d.  7  The  issues  of  the  temporalities  during  the  vacancy 
after  Bishop  Bek's  death,  a  period  of  a  Httle  less  than  three 
months,  amounted  to  ^1536  ^s.  gj4d.^ 

In  1461  the  gross  receipts  of  the  bishopric  for  one  year  were 
^1918  5^.  S%d.^  But  at  this  period  and  earlier  the  Bishops  must 
have  contrived  to  accumulate  a  considerable  amount  of  treasure, 
for  in  1385  Bishop  Fordham  pardoned  John  Clerc,  who  had  in 
1369  stolen  ;^250o  from  Bishop  Hatfield's  treasure  in  the  Castle 

1  Pipe  Roll  13  John,  in  Boldon  Book,  App.  xvi. 

2  Pipe  Roll  14  John,  Ibid.,  xx. 

*  Receipt  roll  of  1307,  Boldon  Book,  App.  xxv-xxxiv. 

*  "  Cum  semel  equitaret  versus  curiam  in  civitate  Romana,  comes  quidam 
de  partibus  illis,  transiturus  ex  adverso  et  per  familiam  ejus,  diutius  admira- 
tus  familiae  magnitudinem,  quaesivit  ab  uno  civium,  '  Quis  est  iste  qui  hie 
transit  ?  '  Et  respondit  civis,  '  Pecuniae  inimicus  : '  "  Graystanes,  cap.  xxv,  in 
Scriptores  Tres,  80. 

5  Taxatio  Ecclesiastica,  314-318. 

®  For  comparative  revenues,  see  the  summary  of  ecclesiastical  taxation  in 
Stubbs,  ii.  600. 

'  Ibid.,  596.  ^  Registrum,  iv.  89-92. 

^  Receiver-general's  account,  A.  d.  1461,  Ecclesiastical  Commissioners, 
ministers'  accounts,  189816. 


294  FINANCIAL   ARRANGEMENTS.  [Ch.  VII. 

of  Durham.  1  If  the  loss  of  this  sum,  equivalent  to  a  year's  in- 
come, had  occasioned  any  outcry  or  serious  inconvenience,  the 
circumstance  would  assuredly  have  appeared  either  in  the  Dur- 
ham historian  or,  in  some  form  or  other,  on  Bishop  Hatfield's 
rolls  ;  but  both  these  sources  are  silent,  and  we  can  only  conclude 
that  the  loss  was  not  seriously  felt.  In  1535  the  Bishop's  income 
shows  a  slight  shrinkage,  being  stated  in  that  year  as/,'2398  js, 
lod.  ;  but  as  the  estimate  was  made  for  purposes  the  least  threat- 
ening of  which  was  taxation,  we  can  not  be  surprised  that  the 
statement  was  set  as  low  as  possible.^  Financially  the  palatinate 
fared  well  at  the  hands  of  Henry  VIII.  It  remained  for  his 
daughter  Elizabeth  to  strip  it  of  some  of  its  richest  possessions 
and  seriously  to  reduce  its  income.^  In  183 1,  however,  Durham 
was  still  one  of  the  richest  sees  in  England,  showing  an  average 
gross  yearly  income  of  ^21,991,  with  an  average  net  income 
of  ;^  19,066.  At  this  time  the  average  gross  income  of  the  see 
of  Canterbury  was  ;^22,2i6,  of  York  ;£  13,798,  of  Winchester 
j^  12, 107,  and  of  London;^ 1 5, 1 3 3.* 


§  38.    Financial  Relations  of  the  Palatinate  and  the 
Central  Government. 

We  pass  now  to  a  consideration  of  the  financial  relations  of 
the  palatinate  and  the  royal  government.     The  principle  that 

1  Rot.  Fordham,  ann.  3,  m.  6,  curs.  32. 

2  Valor  Ecclesiasticus,  v.  299  ff.  The  return  was  made  by  virtue  of  a 
commission  directed  to  the  Bishop  himself  and  several  local  magnates,  includ- 
ing William  Frankleyne,  archdeacon  of  Durham  and  chancellor  of  the  palat- 
inate. 

8  The  queen,  by  act  of  parliament,  confiscated  more  than  a  quarter  of  the 
palatinate.  These  *'  supprest "  lands  were  eventually  returned  to  the  Bishop 
against  an  annual  rent  charge  of  ;^i02o,  but  the  great  forfeiture  of  the  earl 
of  Westmoreland  after  the  Rising  in  the  North,  which  should  by  right  have 
gone  to  the  Bishop,  was  retained  by  the  queen.  The  rent  charge  was  some- 
what reduced  in  1604,  by  Bishop  Matthew's  surrender  to  the  king  of  the  out- 
lying districts  of  Norhamshire  and  Islandshire.  See  Hutchinson,  Durham, 
i.455,  476,  where  a  long  and  interesting  letter  from  Bishop  Pilkington  to 
Cecil  is  printed;  and  see  the  account  of  Pilkington's  case,  above,  pp.  48-50. 

*  Report  of  the  Ecclesiastical  Revenue  Commissioners,  in  Pari.  Papers, 
3185,  vol.  xxii. 


§38]     RELATION   TO    THE   CENTRAL   GOVERNMENT.      295 

the  king  had  no  authority  to  tax  the  bishopric  was  observed 
from  a  very  early  period  until  the  middle  of  the  fifteenth  cen- 
tury. The  close  connection  between  jurisdiction  and  revenue 
in  the  early  history  of  England  enables  us,  for  the  dark  centu- 
ries before  the  Norman  Conquest,  to  fall  back  on  the  line  of 
reasoning  which  we  followed  in  tracing  the  history  of  the  pala- 
tine judiciary.  We  reached  the  conclusion  that,  from  the  eleva- 
tion of  S.  Cuthbert  to  the  see  of  Lindisfarne  in  685  until  the 
Norman  Conquest,  the  successive  Bishops  of  the  diocese  which 
was  eventually  to  have  Durham  for  its  cathedral  city  were  in 
possession  of  considerable  and  rapidly  increasing  estates.  We 
also  saw  that  these  lands  were  granted  to  them  with  extensive 
immunities,  and  that  they  maintained  a  seignorial  court,  a  cir- 
qumstance  which  implied  exemption  from  interference  on  the 
part  of  the  king's  officers.^  Their  lands,  therefore,  must  have 
been  free  from  taxation  until  the  institution  of  Danegeld  in 
991.2 

It  has  been  doubted  whether  this  tax  was  paid  at  all  by  the 
remote  northern  counties,^  and  there  is  no  evidence  that  it  was 
collected  in  the  patrimony  of  S.  Cuthbert.  Immunity  from 
Danegeld,  moreover,  was  not  unknown  before  the  Conquest. 
There  are  striking  examples  of  such  exemption  in  Cornwall  and 
Suffolk,  where  two  churches  taxed  their  tenants  and  yet  paid  no 
geld  to  the  king.*  Again,  when  under  the  Conqueror  Danegeld 
became  a  regular  tax,  the  sum  payable  by  each  county  was  de- 
termined by  the  Domesday  survey  ;^  and  Durham  was  omitted 
from  the  survey,  though  not,  as  we  have  ventured  to  suggest, 
because  of  its  inability  to  pay.^  Furthermore,  although  the 
bishopric  by  reason  of  its  vacancy  was  included  in  the  earliest 
surviving  pipe  roll,  it  did  not  then  pay  Danegeld,  nor  yet  when 
it  appears  again  in  the  pipe  roll  of  1197  is  there  any  account  of 

1  Above,  §  16.  See  also  Maitland,  Domesday  Book  and  Beyond,  258- 
292. 

2  Maitland,  Domesday  Book  and  Beyond,  323;  Stubbs,  i.  118,  148. 
8  Maitland,  Domesday  Book  and  Beyond,  446. 

*  Domesday  Book,  i.  121,  ii.  372,  iv.  187,  quoted  in  Maitland,  Domesday 
Book  and  Beyond,  55. 

^  Stubbs,  i.  431.  *  Above,  pp.  25-27. 


296  FINANCIAL   ARRANGEMENTS.  [Ch.  VII. 

carucage.^  Symeon  has  a  tale  that  Ranulf,  a  tax-gatherer,  was 
sent  by  the  Conqueror  to  force  the  people  of  the  saint  to  con- 
tribute to  the  national  revenue  (^qui  ipsius  sancti  populum  regi 
tributum  solvere  compelleret)  ;  but,  S.  Cuthbert,  in  his  anger  at 
such  an  infringement  of  his  Hberties,  horribly  visited  Ranulf, 
who  was  glad  to  escape  alive  from  the  bishopric.^  When  due 
allowance  has  been  made  for  the  miraculous  element  in  this 
tale,  for  the  probable  date  of  its  composition  (1104,  about  a 
generation  later  than  the  events  described),  and  for  the  natural 
bias  of  the  writer  (a  monk  in  a  convent  the  endowment  of  which 
was  derived  from  the  Bishop),  it  is  still  of  value;  for  it  shows 
the  local  notion  of  the  Bishop's  privilege  in  the  matter  of  taxa- 
tion, and,  in  connection  with  the  other  facts  that  have  come 
before  us,  goes  far  toward  the  support  of  our  hypothesis. 

It  will  be  remembered  that  Henry  II  granted  to  the  Bishop  of 
Durham  all  liberties,  free  customs,  and  privileges  enjoyed  by 
his  predecessors  in  the  time  of  Henry  I  ^  and  William  II,*  and 
in  another  charter,  which  seems  to  be  a  definition  of  this  one, 
granted  that  all  the  lands  and  men  of  S.  Cuthbert  and  of  the 
monks  of  Durham  should  be  free  from  shires  and  hundreds, 
trithings  and  wapentakes,  and  aids  of  sheriffs  and  reeves.^  The 
same  king  issued  a  charter  of  indemnity  against  the  mission  of 
his  justices  to  execute  the  Assize  of  Clarendon,  stating  that  this 
action  was  not  to  be  taken  as  a  precedent  because  he  wished 
that  the  lands  of  S.  Cuthbert  should  have  and  enjoy  all  their  old 
liberties  and  privileges.^  It  follows  that  the  exclusion  of  the 
king's  justices  was  one  of  these  privileges,  and  it  is  known  that 
the  earlier  circuits  of  this  sort  were  made  for  financial  not  less 
than  for  judicial  purposes." 

In  Henry  IFs  reign  we  meet  with  a  new  difficulty,  in  the 

1  Boldon  Book,  App.  i-xiii.  Although  the  sheriff  compounded  for 
Danegeld,  it  was  accounted  for  by  that  name,  and  could  not  therefore,  in 
the  case  of  Durham,  have  been  included  in  the  farm  of  the  county.  See 
Madox,  Exchequer,  i,  685. 

2  Symeon,  i.  107-108;  cf.  Metrical  Life  of  S.  Cuthbert  (Surtees  Soc), 
lines  6235-6295. 

8  Scriptores  Tres,  App.  No.  xxxv.  *  Ibid.,  No.  xxxiv. 

5  Ibid.,  No.  xxxiii.  «  Ibid.,  No.  xxxi.  "^  Stubbs,  i.  655-656. 


§38]      RELATION  TO    THE   CENTRAL  GOVERNMENT     297 

shape  of  the  first  tax  on  movables,  the  Saladin  tithe.  The 
question  whether  this  might  be  levied  in  the  bishopric  was  not 
tested.  Pudsey  took  the  cross,  thus  exonerating  himself  from 
the  impost,^  and,  having  raised  large  sums  of  money  from  his 
subjects,  made  elaborate  preparations  for  the  expedition. ''^  After- 
ward he  obtained  from  the  pope  absolution  of  his  vow,  and  re- 
mained at  home  to  share  with  the  bishop  of  Ely  the  direction  of 
the  kingdom  during  Richard's  absence,^  though,  as  the  event 
proved,  he  would  have  done  better  to  have  gone  to  the  Holy 
Land.*  During  the  vacancy  which  followed  on  the  death  of 
Bishop  Philip  of  Poitou  in  1208  the  king  appears  to  have  raised 
money  in  the  bishopric,  although  this  step  was  regarded  as  an 
infringement  of  local  privilege.^ 

The  theory  that  contributions  in  England  could  only  be  raised 
by  consent  of  the  kingdom  introduces  a  new  factor  into  our 
problem.  During  the  thirteenth  century,  before  the  complete 
organization  of  the  parliament,  it  was  always  possible  to  deal 
separately  with  the  communitas  of  each  county.  This  was  done 
in  Yorkshire  in  1220,^  and  a  similar  method  was  probably  fol- 
lowed when  in  1225  the  people  of  the  bishopric  granted  to  the 
king  a  tax  on  movables.'^  We  have  already  seen  how  this  prin- 
ciple continued  to  be  applied  to  the  bishopric  during  the  four- 
teenth and  part  of  the  fifteenth  century,  and  how,  while  the 
theory  was  maintained,  the  practice  gave  way  before  the  grow- 
ing necessities  of  the  kingdom  and  the  increased  centralization 
of  government.^     At  this  point,  however,  a  brief  recapitulation 

1  See  the  Ordinance  of  the  Saladin  Tithe,  §  3,  in  Stubbs,  Select  Char- 
ters, 160. 

2  Episcopus  vero  cruce  suscepta  .  .  .  non  modicam  a  suis  pecuniam 
extorsit,"  etc. :  Coldingham,  cap.  viii,  in  Scriptores  Tres,  13. 

8  Ibid.,  14;  and  see  the  pope's  dispensation,  Ibid.,  App.  No.  xliv. 

^  Benedictus  Abbas,  ii.  106,  109,  no. 

^  "Homines  quoque  monachorum  Dunhelmiae  [qui]  hie  hactenus  in 
quodam  sinu  patris  latuerant,  ad  communes  tallias  et  vexationes  et  onera 
compellebantur ;  nee  eos  beati  Patris  Cuthberti  tuebatur  reverentia;  nee 
aliquod  hiis  remedium  consuetudo  antiqua  neque  ecclesiae  conferre  poterant 
privilegia : "  Coldingham,  cap.  xix,  in  Scriptores  Tres,  27. 

8  Stubbs,  ii.  234. 

7  Rot.  Lit.  Claus.,  9  Hen.  Ill,  ii.  75  b;  above,  p.  116. 

8  Above,  §  12. 


298  FINANCIAL  ARRANGEMENTS.  [Ch,  VII. 

is  needed.  In  1374  the  king,  having  raised  a  subsidy  through- 
out the  parishes  of  England  including  those  of  Durham,  issued 
his  letters  patent  to  the  men  of  Durham  reciting  that  since  they 
had  allowed  the  collection  of  this  tax  by  their  own  good  will  and 
mere  motion,  it  was  to  be  regarded  as  a  favor  and  not  drawn 
into  a  precedent.^  The  bishopric  was  excluded  by  name  from 
the  incidence  of  Richard  IFs  disastrous  poll-tax  of  1380,  and, 
although  parliament  petitioned  against  this  favor,  the  request 
was  not  granted.2  In  1437  Bishop  Langley  obtained  royal  let- 
ters of  indemnity  against  a  tax  which  had  been  raised  in  the 
palatinate.  The  enrolment  of  this  document  on  the  Bishop's 
chancery  roll  in  1449,  together  with  the  text  of  an  act  passed  in 
that  year  for  the  collection  of  a  subsidy  throughout  the  kingdom 
without  regard  to  immunities  or  exemptions,  marks  with  a  kind 
of  silent  protest  the  abandonment  of  the  principle  that  the  palat- 
inate might  not  be  taxed  without  its  consent.^ 

So  much  for  the  theory ;  we  turn  now  to  the  practice.  In 
1338  the  king  requested  Bishop  Bury  to  collect  a  representative 
assembly  of  his  subjects  and  cause  them  to  grant  him  one  half 
of  the  wools  of  the  palatinate,  which  were  to  be  gathered  by 
persons  appointed  for  that  purpose  by  the  Bishop.*  In  1374,  as 
we  have  seen,  the  king  levied  a  subsidy  in  the  palatinate  without 
leave  or  licence,  but  afterward  issued  letters  of  indemnity .^  In 
1437  the  king,  by  threatening  a  tax  and  promising  indemnity, 
was  able  through  skilful  flattery  to  raise  from  the  men  of  the 

1  Rot.  Pari.,  ii.  App.  135,  461  ;  Scriptores  Tres,  App.  No.  cxxv. 

2  Calendar  of  Patent  Rolls,  1 377-1 381,  p.  628. 

»  Rot.  iii.  Nevill,  ann.  28  Hen.  VI,  m.  12,  curs.  44.  That  the  principle 
was  not  abandoned  in  the  palatinate  without  a  struggle  is  hinted  in  a  docu- 
ment compiled  between  1416  and  1446  by  the  prior  of  Durham,  John  Wes- 
sington.  This  work,  entitled  "  Rotulus  in  quo  recitantur  compilationes 
factae  per  Johannem  Wessyngton  priorem  pro  defensione  ecclesiae  Dunol- 
mensis,"  consists  of  a  number  of  heads  of  arguments,  most  of  which  were 
based  on  historical  investigation.  The  one  bearing  on  the  question  in  hand 
is  as  follows :  "  Item,  quod  homines  episcopatus  Dunolmensis  liberi  forent 
a  solucione  subsidii  domino  regi  virtute  libertatis  suae  "  (Registrum,  iv.  483- 
486;  Scriptores  Tres,  App.  No.  ccxxviii). 

*  Registrum,  iv.  225-231. 

5  Rot.  Pari.,  ii.  App.  135,  461 ;  Scriptores  Tres,  App.  No.  cxxv. 


^S8]    RELATION  TO    THE   CENTRAL   GOVERNMENT.      299 

bishopric  rather  more  than  their  share  of  a  subsidy  that  was 
being  collected  throughout  the  kingdom.^  In  1449  the  bishopric 
was  included  in  the  incidence  of  a  general  tax  without  any  ques- 
tion of  indemnity .2  In  1488  the  people  of  Durham  refused  to 
pay  a  tax  of  a  tenth  on  movables,  and  the  king's  effort  to  coerce 
them  produced  a  rebellion,  though  this  was  probably  due  as  much 
to  their  loyalty  to  Richard  III  and  their  dislike  of  the  earl  of 
Northumberland,  through  whom  the  king  had  tried  to  exert  his 
authority  as  to  any  sense  of  irritation  at  an  infringement  of  their 
privileges.^ 

During  the  whole  of  the  Tudor  period  the  counties  of  Durham, 
Northumberland,  Cumberland,  and  Westmoreland  were  exempted 
from  taxation  on  the  supposition  that  they  were  liable  to  be  rav- 
aged by  the  Scots.*  In  the  seventeenth  century,  however,  the 
county  of  Durham,  although  without  parliamentary  representa- 
tion until  1673,  bore  its  share  of  the  financial  burdens  of  the 
kingdom.  It  was  assessed  like  the  other  counties  for  ship- 
money,^  and  in  1636  paid  £^2000  toward  that  ill-timed  tax.^ 
Indeed,  the  admission  of  the  king's  right  to  tax  the  county  is 

1  Rot.  iii.  Nevill,  ann.  15  Hen.  VI,  m.  12,  curs.  44;  see  above,  p.  117. 

2  Above,  p.  118. 

8  The  tax  was  granted  for  the  war  in  France,  "which  monie  the  most 
part  of  them  that  dwelled  in  the  bishoprike  of  Durham,  and  in  the  parties  of 
Yorkeshire  refused  utterlie  to  paie  ;  either  for  that  they  thought  themselues 
ouercharged  with  the  same ;  or  were  procured  to  show  themselues  disobe- 
dient, thorough  the  euill  counsell  of  some  seditious  persons,  which  conspired 
against  the  king,  to  put  him  to  new  trouble."  When  the  king,  through  the 
earl  of  Northumberland,  declined  to  remit  or  abate  the  tax,  "the  rude  and 
beastlie  people  hearing  of  this  answer  from  the  king,  by  and  by  with  great 
violence  set  upon  the  earle  .  .  .  like  unreasonable  villaines,  alledging  all  the 
fault  to  be  in  him,  as  chiefe  author  of  the  tax,  furiouslie  and  cruellie  mur- 
thered  both  him  and  diuerse  of  his  household  seruants.  Diuerse  affirme 
that  the  Northerne  men  bare  against  this  earle  continuall  grudge  euer  since 
the  death  of  king  Richard,  whom  they  entirelie  favoured;"  (Holinshed, 
Chronicles,  iii.  769). 

*  Dowell,  History  of  Taxation,  i.  180,  195. 

^  Calendar  of  State  Papers,  Domestic,  1 635-1 636,  p.  345. 

®  Ibid.,  528.  The  payment  of  this  tax  was  taken  so  much  as  a  matter  of 
course  that,  although  in  1636  the  people  of  Durham  petitioned  for  a  slight 
readjustment  of  the  assessment,  there  is  no  hint  of  any  protest  against  the 
tax  itself.     See  Ibid.,  330. 


300  FINANCIAL  ARRANGEMENTS.  [Ch.  VII. 

implied  in  the  Bishop's  petition  against  an  order  of  the  court 
of  exchequer  requiring  the  sheriffs  of  Durham  to  account  there. 
The  Bishop  submitted  that  this  demand  was  an  infringement  of 
the  ancient  rights  of  his  county  palatine,  but  he  protested  only 
against  the  fact  that  his  sheriffs  were  required  to  go  to  the 
royal  exchequer  to  account,  and  was  apparently  satisfied  with 
an  arrangement  by  which  they  should  account  to  the  king's 
auditor  at  Durham  for  such  things  as  concerned  the  king.^  The 
representation  of  the  county  in  parliament  put  an  end  to  any 
possible  question  of  immunity  from  taxation.^ 

The  question  of  ecclesiastical  taxation  presents  few  diffi- 
culties. The  diocese  of  Durham  embraced  Northumberland 
as  well  as  the  palatinate,  and  the  clergy  of  these  counties,  rep- 
resented in  convocation  of  the  province  of  York,  taxed  them- 
selves at  the  king's  request,  like  those  of  any  other  English 
diocese.  Durham  was  included  in  the  assessment  of  the  tenth 
granted  by  the  pope  to  Edward  I,  and  under  the  taxation  of 
Pope  Nicholas  was  valued  at  £\os^^  4^.  9%ci.^  The  clergy 
made  many  grants  to  the  king,  and  there  is  frequent  reference 
to  the  collection  of  tenths,  moieties,  and  subsidies  in  the  diocese 
of  Durham.* 

1  This  petition  was  referred  to  a  committee  including  Laud,  Coke,  and 
Windebanke,  which  rendered  the  decision  noted  above  (Calendar  of  State 
Papers,  Domestic,  1635,  p.  487).  Owing  to  the  collapse  of  the  palatinate 
during  the  rebellion  and  the  protectorate,  the  sheriffs  of  Durham  accounted 
at  Westminster  like  those  of  any  other  county,  but  at  the  restoration  they 
were  released  from  this  obligation.  This  release,  a  lengthy  document,  is 
preserved  among  the  Durham  records,  Auditor  3,  No.  130,  and  is  also  on 
the  King's  Remembrancer's  Roll,  14  Car.  II,  Trin. 

2  See  Surtees,  Durham,  i.  App.  No.  ii ;  and  Bean,  Parliamentary  Repre- 
sentation, 97. 

8  Taxatio  Ecclesiastica,  314-318;  and  see  Registrum,  iii.  88  ff. 

*  Registrum,  i.  187,  479,  611,  636-637,  641 ;  Ibid.,  ii.  940-943,  iv.  205-207. 


CHAPTER  VIII. 

MILITARY  AND   NAVAL  ARRANGEMENTS   IN 
THE   PALATINATE. 

§  39.     Military  Relations  "writh  the  Central  Government. 

We  must  distinguish  at  the  outset  between  the  capacities  of 
the  Bishop  as  feudal  tenant  of  the  king,  and  as  ruler  of  a 
province  with  local  independence.  In  his  feudal  character 
he  was  obliged  to  render  the  military  service  incumbent  on  his 
fief,  and  this,  as  has  been  seen,  consisted  in  the  twelfth  cen- 
tury of  the  service  of  ten  knights.^  But  this  contribution  did 
not  even  approximately  represent  the  Bishop's  place  in  the 
feudal-military  scheme  of  the  kingdom;  some  notion  of  his 
consequence  may  be  obtained  from  the  importance  attached  by 
the  king  to  the  Bishop's  support  in  the  troubles  of  1173-1174,2 
and,  earlier  still,  from  the  determination  of  William  Rufus  to 
treat  the  Bishop  as  a  feudatory  and  to  secure  possession  of 
Durham  Castle  in  the  trial  in  1088.^  The  Bishop's  feudal  ser- 
vices continued  to  be  required  even  after  the  revival  of  the  old 
system  of  national  defence  in  England.  Thus  in  13 13  the 
Bishop  was  notified  to  appear  at  Berwick  on  a  certain  day  with 
the  arms,  horses,  and  soldiers  which  he  owed  the  king,  and  for 
neglect  of  the  summons  he  incurred  a  fine.*  In  his  feudal  rela- 
tions, therefore,  the  Bishop  of  Durham  did  not  differ  from  any 
other  great  lord  in  the  kingdom. 

Turning  now  from  feudalism  to  the  more  ancient  system  of 
national  defence,  let  us  try  to  discover  whether  the  obligation  of 
the  fyrd  lay  upon  the  men  of  S.  Cuthbert  during  the  Anglo-Saxon 
period.    The  question  can  be  only  answered  conjecturally,  though 

1  Liber  Rubeus  de  Scaccario,  i.  410-418. 

2  See  above,  p.  yj.  ^  Symeon,  i.  171 ;  Stubbs,  i.  476. 

*  Registrum,  ii.  986,  loio-ioii.  See  a  similar  summons  in  Foedera,  ii. 
pt  i.  583. 


302     MILITARY  AND  NAVAL  ARRANGEMENTS.     [Ch.  VIII. 

indeed  it  does  not  become  important  until,  in  the  Angevin  times, 
the  Bishops  found  it  necessary  to  define  and  assert  their  privi- 
leges in  the  face  of  the  rapidly  developing  central  government. 
Before  the  Norman  Conquest  probably  not  even  the  greatest  of 
immunists  could  evade  the  obligation  of  the  trinoda  necessitas} 
and  there  is  no  reason  to  suppose  that  the  patrimony  of  S.  Cuth- 
bert  offered  an  exception  to  this  rule.  This  view  is  confirmed 
by  the  fact  that  the  army  which  met  and  defeated  the  Scots  at 
the  battle  of  the  Standard  was  recruited  in  Durham  ;  and  this 
army  was  furnished  by  the  ancient  fyrd  system .^ 

After  this  there  is  a  great  gap  in  our  information.  The  troubles 
of  1 1 73-1 174  no  doubt  gave  occasion  for  national  defence,  but 
Bishop  Pudsey  was  disloyal  and  took  part  with  the  rebels.^ 
The  Assize  of  Arms  may  have  been  applied  in  the  palatinate, 
though  the  probabilities  point  both  ways.  On  the  one  hand  is 
the  fact  that,  when  the  king  wished  to  execute  the  Assize  of 
Clarendon  in  Durham,  he  issued  a  charter  of  indemnity  to  the 
Bishop  against  this  infringement  of  his  liberties  ;  and,  on  the 
other  hand,  in  the  succeeding  century  the  military  provisions  of 
the  statute  of  Winchester  were  applied  to  the  bishopric  with- 
out question.  For  the  greater  part  of  the  thirteenth  century  the 
question  lies  in  complete  darkness ;  it  is  not  known  whether  the 
men  of  Durham  were  called  out  by  John's  treacherous  summons 
in  1205,  though  if  they  had  gone  it  seems  probable  that  the  local 
historian  would  have  mentioned  an  affair  which  in  the  rest  of  the 
kingdom  was  regarded  as  so  great  a  scandal  and  grievance.* 

1  Maitland,  Domesday  Book  and  Beyond,  272-274. 

2  Stubbs,  i.  350,  469-470.  The  fact  that  the  army  was  recruited  in  Dur- 
ham is  not  directly  mentioned,  but  it  is  stated  that  archbishop  Turstan 
directed  that  troops  should  be  enlisted  by  the  priest  of  every  parish  through- 
out his  diocese  ;  and  the  primary  ecclesiastical  significance  of  the  word 
"diocese"  is  "metropolitan  province."  Furthermore,  Robert  Bruce  and 
Bernard  Balliol,  two  of  the  greatest  barons  of  the  bishopric,  were  among  the 
leaders  in  the  movement  for  national  defence.  See  Richard  of  Hexham, 
in  The  Priory  of  Hexham  (Surtees  Soc),  i.  85-95  ;  Ailred  of  Rievaulx, 
in  Twysden,  Scriptores  Decem,  338-345  ;  Ducange,  Glossarium,  s.  v.  "  Dio- 
cesis." 

3  Coldingham,  cap.  vi,  in  Scriptores  Tres,  10 ;  Jordan  Fantosme,  Chron- 
icle, lines  1 603-1 605. 

<  Stubbs,  i.  587. 


§39]       RELATIONS   WITH  CENTRAL   GOVERNMENT.       303 

Toward  the  end  of  the  century  the  old  fyrd  obligation  reap- 
pears in  the  shape  of  a  theory  that  the  Bishops  of  Durham  had 
a  special  duty  in  the  defence  of  the  borders.  It  used  to  be  said 
that  for  this  purpose  the  Conqueror  erected  the  palatinate,  and 
that  the  Bishop  enjoyed  his  privileges  in  order  that  he  might  have 
greater  freedom  in  the  exercise  of  his  duties  on  the  border.^  This 
theory  is  not  clearly  expressed,  however,  until  the  reign  of  Ed- 
ward II,  when  it  probably  had  its  origin  in  the  dislocated  condi- 
tion of  the  borders  which  followed  on  the  extinction  of  the  direct 
line  of  Scotland.  Bishop  Bek  indeed,  who  loved  war  for  its  own 
sake,^  gave  to  the  king  far  more  than  the  service  required  of  him 
by  his  feudal  relation.  In  1298  he  carried  through  the  siege  of 
the  castle  of  Dirlton  in  Scotland,^  and  seems  at  that  time  to  have 
had  the  whole  conduct  of  the  war  on  behalf  of  the  king.*  Unable 
himself  to  join  in  the  campaign  of  1300,  he  sent  one  hundred  men 
at  arms  to  aid  the  king,^  and  by  his  zeal  in  this  matter,  as  has 
been  seen,  incurred  the  enmity  of  his  subjects,  whom  he  had  twice 
led  to  Scotland  despite  their  protests.^  But  that  all  this  was 
much  more  than  the  king  could  command  by  right  of  his  feudal 
relation  to  the  Bishop  appears  from  the  terms  of  the  king's  re- 
quest for  the  Bishop's  aid  against  the  Scots,  who  in  1303  had 
invaded  Cumberland :  the  king  asks  that  Bek  shall  send  a  cer- 
tain contingent  of  men  at  arms,  but  he  does  not  command  him 
to  do  so ;  "  affectuose  rogamus  "  are  the  words  J  Again  in  1309, 
when  precepts  were  issued  to  the  sheriffs  of  England  to  muster 
a  certain  number  of  men  from  each  county,  the  king  requested 
the  Bishop  to  send  him  three  hundred  men  from  the  liberty  of 

1  See  above,  §  3. 

2  Graystanes,  cap.  xviii,  in  Scriptores  Tres,  64 ;  and  cf.  Walter  of  Hem- 
ingburgh  (ii.  215),  who  says  of  him,  "  non  timens  hominem  neque  regem." 

8  Walter  of  Hemingburgh,  ii.  174-175. 

^  Rishanger,  Chronica,  186. 

6  Roll  of  Caerlaverock  (ed.  Wright),  22-23.     It  is  here  said  of  him :  — 

"  En  toutes  les  guerres  le  roi 
Avoit  este  de  noble  aroi, 
A  grant  gens  e  a  grans  coustages." 

«  Graystaynes,  cap.  xxiii,  in  Scriptores  Tres,  76  ;  and  see  above,  p.  128  fif. 
^  Foedera,  i.  pt.  ii.  957. 


304    MILITARY  AND  NAVAL  ARRANGEMENTS.    [Ch.  VIII. 

Durham  ;  ^  and  in  order  to  help  the  Bishop  to  bear  the  unwonted 
expense  of  so  great  contributions,  the  king  made  over  to  him 
that  part  of  the  tenth  granted  to  himself  by  the  clergy  in  1296 
which  fell  upon  the  diocese  of  Durham.^ 

During  the  troubled  reign  of  Edward  II  the  Scots  were  par- 
ticularly aggressive,  and,  as  has  been  noticed  in  another  connec- 
tion, were  dealt  with  somewhat  independently  by  the  people  of 
the  bishopric.  But  the  practice  of  asking  help  from  the  Bishop 
continued.  In  131 1  the  king  asked  that  his  commissioners 
might  levy  one  foot-soldier  from  every  vill  in  the  palatinate,  to 
serve  for  seven  weeks  at  the  expense  of  the  vill;  and  at  the 
same  time  he  issued  letters  of  indemnity  reciting  that  this  per- 
mission had  been  given  at  his  urgent  request  and  by  the  pure 
good  will  and  free  assent  of  the  Bishop.^  In  March,  13 14,  the 
king  asked  for  one  thousand  men  equipped  with  bows,  arrows, 
and  other  proper  arms,  to  be  raised  in  the  palatinate  by  the  pro- 
cess of  **  election  "  in  every  vill,  under  the  supervision  of  the 
Bishop's  officers ;  and  the  wording  of  the  writ  implied  that  he 
considered  himself  entitled  to  the  contribution.^  As  the  men 
were  not  immediately  forthcoming,  in  May  a  second  writ  was 
issued,  in  which  the  contribution  is  put  in  the  light  of  a  favor 
rather  than  of  a  right  upon  which  the  king  might  insist.^ 

In  13 15  a  new  element  appeared  which  was  destined  to  become 
predominant  in  the  military  arrangements  of  the  palatinate.  This 
was  the  device  of  sending  a  detachment  of  the  royal  army  to 
Durham  with  a  precept  to  the  Bishop  to  allow  its  commanders 

1  "Et  rogaverimus  venerabilem  patrem  A[ntoiiium],"  etc. :  Foedera,  ii. 
pt.  i.  83. 

2  This  fact  appears  in  the  return  made  to  the  king's  writ  issued  in  131 5 
to  inquire  with  regard  to  the  collection  of  the  tenth  granted  to  his  father. 
See  Registrum,  ii.  1 048-1 050. 

^  Registrum,  i.  16-17.  *  Ibid.,  ii.  989-990. 

®  Ibid.,  1003-1004.  The  Bishop  did  what  he  could  for  the  defence  of  the 
border,  but  he  did  not  neglect  to  make  his  profit  out  of  these  efforts.  Thus 
when,  the  next  year,  in  the  course  of  a  suit  in  the  palatine  courts  a  vexa- 
tious royal  writ  was  brought  by  one  of  the  parties,  the  Bishop  returned  that 
he  was  so  occupied  with  the  defence  of  the  border  and  with  the  safety  of  his 
own  and  the  king's  people  that  he  had  been  unable  to  make  any  execution  of 
the  writ  (Ibid.,  107 1). 


§39J      RELATIONS   WITH  CENTRAL   GOVERNMENT.       305 

to  raise  men  in  the  franchise.  The  levy  was  to  be  made  by  the 
help  of  persons  appointed  by  the  Bishop.  Following  close  on 
the  terrible  Scottish  invasion,  after  which  the  people  of  the 
palatinate  had  so  ingloriously  bought  an  armistice,  this  docu- 
ment contained  a  strict  prohibition  against  private  truces,^  —  a 
somewhat  cavalier  treatment  of  the  Bishop's  privilege,  occasioned 
no  doubt  by  his  incapacity  or  by  his  misfortune  in  repelling  the 
Scottish  inroads.  In  1322  the  Bishop,  having  obeyed  a  royal 
summons  to  follow  the  king  to  Scotland  with  all  the  able-bodied 
men  of  his  liberty  between  the  ages  of  sixteen  and  sixty,  obtained 
letters  of  indemnity  against  the  establishment  of  any  precedent 
by  this  step.^ 

In  the  mean  time  the  theory  had  taken  shape  that  the  Bishop 
of  Durham  enjoyed  his  franchise  at  the  service  of  defending  the 
borders.  The  king  wrote  to  the  pope  in  13 11,  asking  that  on 
this  ground  the  Bishop  be  excused  from  attendance  at  a  general 
council ;  ^  and  the  Bishop's  own  letter  states  the  matter  very 
clearly.*  Again  in  13 13  the  Bishop  was  excused  from  attending 
parliament  on  the  same  plea.^  The  point  is  also  well  brought  out 
in  the  correspondence  relative  to  the  election  of  Bishop  Louis  de 
Beaumont  in  1318.  The  king,  at  the  urgent  intercession  of  the 
queen,  asked  the  pope  to  provide  Beaumont  to  the  see  of  Dur- 
ham, representing  that  he  would  be  a  brazen  wall  against  the 
Scots.^  In  1323  the  king  wrote  to  Beaumont,  directing  him  to 
return  immediately  to  his  diocese,  raise  men,  and  attend  to  the 

1  Registrum,  ii.  iioo-iioi.  The  document  is  also  printed  in  Ibid.,  iv. 
127-128;  Foedera,  ii.  pt.  i.  280. 

2  Foedera,  ii.  pt.  i.  491.  ^  Registrum,  i.  73-75. 

*  "  Sed  vestrae  sanctitati,  non  sine  gravi  doloris  amaritudine,  significo 
quod  praedictam  diocesim  Dunelmensem,  quae  est  in  Marchiis  Angliae  et 
Scotiae  constituta  (ad  cujus  defensionem  et  tuitionem,  tam  in  temporalibus 
quam  in  spiritualibus,  occasione  terrarum,  reddituum  et  libertatum  praefatae 
ecclesiae  Dunelmensis,  et  episcopis  ejusdem  qui  pro  tempore  fuerint,  lar- 
gitione  regum  Angliae  et  aliorum  Christi  fidelium  concessarum,  ac  suscepti 
regiminis  specialiter  sum  astrictus)  diri  temporis  adversitas,  proh  dolor !  jam 
constringit."     (Ibid.,  92-95.) 

6  Ibid.,  384. 

•  Foedera,  ii.  pt.  i.  312,  325 ;  Graystanes,  cap.  xxxvii,  in  Scriptores  Tres, 
98 ;  cf.  also  Registrum,  iv.  393-396. 

20 


306    MILITARY  AND  NAVAL  ARRANGEMENTS.    [Ch.  VIII. 

defence  of  the  border,  and  reminding  him  with  some  asperity 
that  before  his  election  he  had  assured  the  king  that,  if  only 
some  person  of  noble  birth  like  himself  were  made  Bishop  of 
Durham,  he  would  stand  as  a  very  wall  of  stone  against  the 
Scots.^  The  natural  consequence  of  this  theory  was  to  give  the 
king  an  increased  hold  over  the  military  affairs  of  the  palat- 
inate, for,  if  it  was  the  bishop's  duty  to  defend  the  border,  it  was 
the  king's  business  to  see  that  that  duty  was  discharged.  To 
this  source  may  be  traced  the  growing  practice  of  requiring 
large  contributions  of  men  and  arms  from  the  Bishop,  who  was 
afterward  indemnified  against  the  consequences  of  his  generosity 
by  letters  patent.     This  was  done  in  1333  and  again  in  1335.^ 

Another  means  of  raising  troops  was  to  require  a  given  num- 
ber of  men  of  the  Bishop  and  allow  him  to  procure  them  by  com- 
missions of  array .^  This  was  probably  the  most  regular  but 
not  the  most  convenient  method  ;  accordingly  it  gave  way  before 
the  plan  of  notifying  the  Bishop  that  he  should  be  obedient  in 
all  things  to  this  or  that  nobleman,  who,  having  received  the 
conduct  of  the  war,  thus  became  the  representative  of  the  king. 
This  method,  as  has  been  seen,  was  used  under  special  circum- 
stances in  1315.  Again,  in  1341,  the  Bishop  was  required  to 
arm  and  array  all  the  fencible  men  of  his  liberty,  and  to  send 
them  to  Edward  Balliol,  who  had  the  conduct  of  the  war.*  In 
1369,  when  the  sheriffs  of  England  were  directed  to  array  all 
fencible  men  of  the  proper  age  in  their  counties  in  anticipation 
of  an  expected  invasion,  the  Bishop  of  Durham  was  directed  to  do 
the  same  in  his  province.^  In  1399,  on  the  plea  of  an  expected 
invasion  of  the  French,  the  king  directed  the  Bishop  of  Durham 
to  array  the  clergy  of  his  diocese ;  but  this  muster  was  managed 
by  the  Bishop's  commissioners.^ 

1  Foedera,  ii.  pt.  i.  506. 

2  Calendar  of  Patent  Rolls,  1330-1334,  p.  460;  Ibid.,  1334-1338,  p.  99; 
and  cf.  Parliamentary  Writs,  ii.  37,  46,  222,  585,  601. 

^  See  Registrum,  iv,  191,  198-199,  262,  269;  Rot.  Fordham,  ann.  4,  m.  4 
dorse,  curs.  32 ;  Rot.  A.  Langley,  ann.  3,  m.  3  dorse,  and  ann.  9,  m.  11  dorse, 
curs.  34.  Commissions  of  this  sort  are  of  very  common  occurrence  on  the 
palatine  chancery  rolls. 

^  Foedera,  ii.  pt.  ii.  1175.  ^  Ibid.,  iii.  pt.  ii.  863. 

*  Scriptores  Tres,  App.  No.  clxi.     See  the  muster  roll,  Ibid.,  No.  clxii. 


§39]      RELATIONS   WITH  CENTRAL   GOVERNMENT.       307 

In  1436  the  pretence  of  regarding  the  Bishop's  liberties  is 
quite  cast  aside.  The  king  writes  that,  since  the  Scots  are 
preparing  to  besiege  Berwick,  the  Bishop  shall  cause  the  royal 
order  to  be  proclaimed  in  public  places  in  his  bishopric  that  all 
knights,  esquires,  and  other  fencible  men  are  to  hold  themselves 
ready,  equipped  according  to  their  degree,  to  go  to  the  succor  of 
the  cities  and  castles  of  the  marches,  whenever  and  as  often 
as  they  may  be  required  by  the  earls  of  Northumberland  and 
Westmoreland  or  by  other  persons  commissioned  by  the  king. 
This  letter  the  Bishop  transmitted  to  his  sheriff,  with  direc- 
tions to  have  it  proclaimed  in  all  public  places  in  the  franchise.^ 
There  is  no  longer,  it  will  be  noticed,  any  question  of  letters  of 
indemnity.  Under  somewhat  similar  circumstances,  in  1480, 
the  Bishop  made  a  futile  effort  to  save  his  dignity.  At  this 
time  the  truce  with  Scotland  had  been  broken,  and  the  duke  of 
Gloucester  was  appointed  the  king's  representative  to  carry  on 
the  war.  He  was  authorized  to  call  out  all  the  king's  subjects  in 
the  marches  of  Scotland  and  the  adjacent  counties,  of  whatsoever 
state,  degree,  or  condition  they  might  be,  and  to  require  them 
to  serve  as  long  and  as  often  as  he  chose  to  use  them.  Bishop 
Dudley  in  his  commission  recites  this  precept,  and  then,  calling 
attention  to  the  glorious  victories  of  the  duke  of  Gloucester 
and  his  constant  support  of  the  rights  and  royal  liberties  of 
the  church  of  Durham,  proceeds  to  authorize  that  most  excel- 
lent prince  to  muster  and  array  all  the  tenants,  subjects,  and 
officers  of  the  palatinate.^ 

During  the  fifteenth  century  a  new  factor  enters,  though 
somewhat  obscurely,  into  these  affairs.  This  is  the  growing 
jurisdiction  of  that  association  of  the  wardens  and  councils  of  the 
marches  which  has  been  already  noticed.^     There  is  not  much 

1  Rot.  DD.  Langley,  ann.  31,  m.  15,  curs.  34. 

2  "Nos  autem  praefato  excellenti  principi,  non  solum  propter  ejus  in 
armis  obtentum  honorem  et  victoriam,  verum  etiam  propter  ejus  hactenus 
supportacionem  jurium  et  libertatum  regalium  ecclesiae  nostrae  cathedralis 
Dunelmensis  nobis  habitam,  damus  et  concedimus  plenariam  potestatem  et 
auctoritatem  ad  omnes  et  singulos  tenentes,  officiarios,  ministros,  et  subditos 
nostros  infra  episcopatum  nostrum  Dunelmensem,  cujuscunque  status,  gradus 
aut  condicionis  fuerint,  evocandi  et  levandi :  "  Rot.  i.  Dudley,  ann.  4,  m.  11, 
curs.  54. 

3  Above,  §  35. 


308    MILITARY  AND  NAVAL  ARRANGEMENTS.    [Ch.  VIII. 

evidence  on  this  point,  but  it  looks  as  though  in  military  affairs 
the  privileges  of  the  palatinate  were  never  allowed  to  interfere 
with  the  complete  freedom  of  action  on  the  part  of  the  authori- 
ties of  the  marches,  and,  further,  that  the  Bishops  always  ac- 
cepted this  arrangement  without  question  ;  undoubtedly,  indeed, 
they  were  glad  of  any  assistance  in  their  arduous  task  of  defend- 
ing the  borders,  even  though  obtained  at  the  cost  of  some  in- 
fringement of  their  liberties.  The  king's  commission  in  1480 
points  to  this  view,  for  it  gave  to  the  duke  of  Gloucester  author- 
ity over  the  marches  and  adjacent  counties,^  which  for  certain 
judicial  purposes  were  reckoned  with  the  marches.''^  Thus,  again 
in  1497,  when  the  Scots  invaded  England  and  sent  an  army  to 
ravage  the  bishopric,  Bishop  Fox  at  once  wrote  to  the  earl  of 
Surrey,  the  king's  lieutenant  in  the  north,  asking  for  help; 
whereupon  Surrey  came  to  Durham  and  raised  a  large  number  of 
men  in  that  county  and  in  Yorkshire.^  In  1499  the  king  wrote 
to  the  Bishop  that  the  Scots  were  preparing  to  invade  the  marches, 
which  he  wished  to  have  defended  according  to  the  ancient  cus- 
tom there  used  ;  accordingly  all  inhabitants  of  the  bishopric  be- 
tween the  ages  of  sixteen  and  sixty  were  commanded  to  array 
themselves  and  prepare  to  follow  lord  Nevill  *'  and  such  other 
captains  as  by  the  right  reverend  father  in  God,  the  Bishop  of 
Durham,  and  the  said  lord  Nevill  shall  be  assigned."  * 

In  1 52 1  recourse  was  had  to  the  device  of  a  general  levy  in  the 
palatinate,  managed  by  the  king's  officers  acting  by  virtue  of  the 
Bishop's  commissions,  which  were  issued  at  the  king's  direction.^ 
This  arrangement  seems  not  to  have  been  very  successful,  for 
the  following  year  the  Bishop  issued  a  commission  to  inquire 
with  regard  to  all  persons  who  had  been  negligent  in  comply- 
ing with  the  mandate,  issued  by  the  Bishop  on  the  king's  be- 
half, directing  them  to  prepare  to  attend  the  king  in  the  war 

1  Gloucester  received  full  authority  to  summon  "omnes  et  singulos  ligeos 
et  subditos  nostros  tarn  in  merchiis  nostris  versus  Scociam  quam  in  comita- 
tibus  eisdem  merchiis  adjacentibus  :  "  Rot.  i.  Dudley,  ann.  4,  m.  11,  curs.  54. 

2  See  31  Hen.  VI,  cap.  iii,  Statutes,  ii.  363. 

3  Holinshed,  Chronicles,  iii.  782-783. 

*  Rot.  ii.  Fox,  ann.  15  Hen.  VII,  m.  3,  curs.  61. 
^  Rot.  i.  Ruthall,  ann.  13,  m.  33,  curs.  70. 


§39]     RELATIONS   WITH  CENTRAL   GOVERNMENT.       309 

against  Scotland.^  By  this  time,  apparently,  the  military  re- 
sources of  the  palatinate  were  for  all  practical  purposes  quite  at 
the  disposal  of  the  king  or  his  representatives. 

The  rest  of  the  story  is  soon  told.  After  the  troubles  of  1536 
Tunstall,  then  Bishop  of  Durham,  was  made  president  of  the 
newly  organized  Council  of  the  North,  and  in  due  course  became 
lord-lieutenant  of  the  county.  The  latter  office,  however,  was  of 
less  importance  than  may  at  first  appear,  owing  to  the  fact  that  in 
military  affairs  the  county  was  entirely  subjected  to  the  jurisdic- 
tion of  the  council.  Indeed,  from  the  establishment  of  the  office 
until  the  close  of  the  eighteenth  century  it  was  held  only  four 
times  by  the  Bishop.^  In  the  reign  of  Elizabeth  the  Bishop  was 
responsible  to  the  wardens  of  the  marches  for  any  assistance  that 
they  might  require  or  that  he  might  be  able  to  give.  Pilkington 
wrote  to  Cecil,  complaining  not  of  this  obligation  but  of  his  in- 
ability to  meet  it  by  reason  of  the  lands  kept  back  from  him  by 
the  queen.  **  The  danger  is  great,"  he  says;  "the  shire  is  smal. 
And  yet  if  any  of  the  wardens  of  the  marches  send  for  aid  to  the 
bishop,  on  the  sudden,  he  must  give  them  help."  ^ 

The  question  of  any  immunity  from  the  general  military 
responsibility  of  the  realm  does  not  appear;  on  the  contrary, 
there  is  evidence  enough  that  Durham  was  forced  henceforth 
to  bear  its  share  of  the  burden  along  with  the  other  counties. 
Thus  in  1596  Bishop  Matthew  writes  to  Cecil  that  the  people  of 
the  county  "  grieve  because  no  county  in  the  north  is  so  charged 
with  service  as  the  small  handful  of  the  bishopric  of  Durham."* 
In  the  same  year  a  body  of  light  horsemen  was  raised  in  York- 
shire and  Durham,  to  serve  under  the  warden  of  the  middle 
marches ;  their  salaries  were  paid  by  warrant  from  the  Council 
of  the  North. 5 

One  final  instance  will  illustrate  the  whole  matter.  In  1638 
the  king  sent  colonel  Sir  Thomas  Morton  into  the  north  to  exe- 
cute the  orders  of  the  council  for  mustering  the  trained  bands. 

1  Rot.  i.  Ruthall,  ann.  14,  m.  36,  curs.  70. 

2  Surtees,  Durham,  i.  p.  cxlvii. 

3  Printed  in  Hutchinson,  Durham,  i.  455. 

*  Calendar  of  State  Papers,  Domestic,  1 595-1 597,  pp.  183-184. 

*  Ibid.,  p.  160. 


3IO    MILITARY  AND  NAVAL  ARRANGEMENTS.     [Ch.  VIII. 

His  **  chiefest  place  of  residence  "  was  appointed  at  Durham, 
and  the  army  was  to  be  assembled  and  quartered  there.  The 
Bishop  was  directed  to  summon  such  of  the  deputy-lieutenants 
of  the  county  as  were  colonels  to  meet  Morton,  and  to  appoint 
fitting  days  and  places  for  the  muster  of  the  trained  bands.^ 
Here  our  interest  in  the  matter  ceases :  whatever  shadow  of 
authority  in  military  affairs  the  Bishop  may  have  retained  is  no 
longer  of  any  constitutional  importance. 


§  40.    Naval  Arrangements. 

In  naval  affairs  the  palatinate  offers  little  or  nothing  of  vital 
interest.  This  department  is  in  close  connection  with  that  royal 
power  of  independent  foreign  relations  which,  as  we  have  seen, 
the  Bishops  did  not  possess.  Moreover,  since  the  national 
defence  depended  in  a  high  degree  on  the  navy,  it  is  not  to  be 
supposed  that  in  this  matter  any  consideration  would  be  shown 
to  individual  interests  or  privileges.  We  shall  find,  then,  in 
a  somewhat  brief  review  of  our  material,  that  in  naval  affairs 
the  palatinate  was  practically  subjected  to  royal  control.  One 
point,  however,  should  be  held  in  mind :  the  Bishop  had  but  one 
important  seaport,  Hartlepool,  and  his  rights  there  had  been 
from  the  close  of  the  thirteenth  century  subject  to  much  dispute, 
although  never  theoretically  denied. 

In  1335  the  king  notified  the  Bishop  that,  in  expectation  of  a 
foreign  invasion,  he  had  appointed  in  every  county  of  the  king- 
dom trustworthy  persons  to  oversee  the  defence  of  the  sea-coasts 
and  ports,  and  to  prepare  in  the  latter  all  men  and  ships  to  resist 
the  invasion.  The  Bishop  was  accordingly  required  to  take  like 
measures  in  the  palatinate.^  A  similar  command  was  issued  in 
the  following  year,  and,  not  being  immediately  complied  with, 
was  twice  repeated  with  much  insistence.^  In  1345  the  king 
ordered  the  impressment  of  all  ships  of  a  certain  class  that  hap- 
pened to  be  in  commission  in  any  part  of  England;  and  the 
Bishop,  professing  his  desire  to  aid  the  king,  directed  that  this 

1  Calendar  of  State  Papers,  Domestic,  1638- 1639,  pp.  179-180. 

2  Registrum,  iv.  192-194.  »  Ibid.,  197-198,  200-203. 


§40]  NAVAL  ARRANGEMENTS.  3H 

order  should  be  executed  in  the  palatinate.^  In  1360  a  like 
measure  was  taken,  but  in  a  more  peremptory  fashion  :  the  king 
ordered  the  Bishop  to  seize  all  the  ships  in  his  liberty,  and  to 
have  them  ready  and  drawn  on  shore  prepared  to  meet  an  antici- 
pated invasion  of  the  French.^ 

In  the  reign  of  Edward  III  the  admiral  comes  into  importance, 
and  the  palatinate  is  soon  subjected  to  the  authority  of  that  offi- 
cer in  all  practical  matters,  although  the  Bishop  retained  in  his 
own  hands  the  jurisdiction  of  the  admiralty.^  Thus  in  1402  the 
Bishop  was  notified  that  the  king  had  appointed  lord  Richard  de 
Grey  to  be  admiral  of  the  fleet  from  the  Thames  northward,  and 
he  was  therefore  required  to  be  obedient  to  the  same  lord  Richard 
in  all  things  respecting  his  office  within  the  liberty  of  Durham.* 
Again,  in  1456  —  to  choose  but  one  of  a  number  of  similar  cases 
—  the  Bishop  received  orders  to  subject  himself  to  the  earl  of 
Huntingdon,  admiral  of  England,  Ireland,  and  Aquitaine.  Ac- 
cordingly he  transmitted  this  royal  letter  to  the  sheriffs  of  Durham 
and  Sadberg,  and  Norham,  with  directions  that  it  be  publicly 
proclaimed  and  that  due  regard  be  given  to  its  contents.^  This 
method  was  quite  justifiable ;  the  Bishops  would  not  have  had 
even  a  theoretic  ground  for  resisting  it. 

1  Registrum,  iv.  361-363.  ^  Foedera,  iii.  pt.  i.  471-472. 

3  See  below,  App.  ii.  It  does  not  appear  that  the  palatinate  was  directly 
subjected  to  the  authority  of  the  earl  of  Suffolk,  who  was  admiral  in  1344, 
when  the  impressment  of  ships  alluded  to  above  occurred.  The  Bishop's 
commission  recites  that  the  king  had  appointed  Suffolk  "  admirallus  flotae 
navium  ab  ore  Thamisis  versus  partes  boriales  ad  faciendum  omnia  et  singula 
quae  ad  officium  admiralli  pertinent  infra  certos  portus  boriales."  His  juris- 
diction therefore  was  restricted  to  specified  ports,  and  the  fact  that  the  Bishop 
is  issuing  his  commission  for  Hartlepool  implies  that  that  port  was  not  so 
specified.     See  Registrum,  iv.  361-363. 

*  Rot.  Skirlaw,  ann.  14,  m.  26,  curs.  33. 

^  Rot.  V.  Nevill,  ann.  8,  m.  21,  curs.  46. 


APPENDIX  I. 


GEOFFREY  FITZ  GEOFFREY'S  CASE. 

"  Gaufridus  filius  Gaufridi  quaeritur  quod  Willelmus  de  Latton  eum 
traxavit  et  implacitavit  in  curia  episcopi  Dunelmensis  injuste  de  terra  de 
Borderum  per  breve  ejusdem  episcopi  et  per  aliud  breve  episcopi  de 
terra  de  Silkesworth ;  et  idcirco  injuste  quia  nullus  liber  homo  consuevit 
implacitari  de  libero  tenemento  suo  in  curia  ilia  tempore  regis  Henrici 
patris  per  aliud  breve  quam  breve  regis  vel  ejus  capitalis  justiciarii :  et 
cum  hoc  idcirco  dixisset  idem  G[aufridus]  in  curia  ilia  non  potuit  ei 
allocari,  ut  dicit,  unde  cum  hoc  vidisset  venit  in  curia  et  petiit  visum  et 
tandem  in  tantum  processit  loquela  quod  posuit  se  in  magnam  assisam 
et  petiit  breve  regis  de  pace  ne  episcopus  teneret  loquelam  illam  in  curia 
sua  quia  idem  Gaufridus  posuerit  se  inde  in  magnam  assisam.  Et  cum 
ipse  breve  illud  ottulisset,  Jordanus  filius  Scocland  ^  unus  de  curia  dixit 
quod  non  omitteret  propter  breve  regis  quin  procederet  in  loquela  ilia. 
Et  nisi  aliud  diceret  .  .  .  haberetur  unde  judicium  suum  ita  quod  coege- 
ret  ipsum  G[aufridum]  vadiare  duellum  inde ;  et  hoc  offert  Marmoduc 
de  Tweng,  qui  praesens  tunc  fuit,  probare  per  corpus  suum  versus  eun- 
dem  Jordanum  si  ipse  hoc  defendere  vellet  per  corpus  suum  vel  per  cor- 
pus alicujus  de  hominibus  ipsius  Marmaduc,  si  per  ahum  quam  per  corpus 
suum  hoc  vellet  defendere.  Et  Jordanus  defendit  injuriam  et  contemptum 
brevis  domini  regis.  Et  super  hoc  Gaufridus  de  Ancle  attornatus  episcopi 
pro  episcopo  et  curia  sua  defendit  injuriam  et  defenderet  ubi  et  quan- 
tum et  qualiter  debebit  salva  dignitate  curiae  episcopi,  et  profert  cartam  ^ 
domini  regis  Johannis  in  qua  continetur  quod  dominus  rex  confirma- 
vit  episcopo  Philippo  ^  omnes  libertates,  dignitates  et  possessiones  quas 
Hugo  *  praedecessor  suus  habuit  et  tenuit  et  quibus  usus  fuit  anno  quo 
obiit.    Et  dicit  quod  hac  libertate  usus  fuit  idem  Hugo  episcopus  anno  quo 

1  This  man  was  a  baron  of  the  palatinate,  and  one  of  the  assessors  of  the  Bish- 
op's court.  See  Symeon,  i.  158;  Feodarium,  124;  Pipe  Roll  13  John,  in  Boldoa 
Book,  App.  xiv ;  Surtees,  Durham,  i.  pt.  ii.  4-5;  above,  pp.  64,  113  note  i. 

2  Rot.  Chart.,  5  John,  120  b. 

8  Philip  of  Poitou,  A.  D.  1 197-1208. 
*  Hugh  Pudsey,  A.  D.  11 53-1 195. 


314  APPENDIX  L 

obiit  quod  per  brevia  sua  tenerentur  placita  in  curia  sua  et  non  per  brevia 
regis.  Et  ut  veritatem  dicat  salva  dignitate  curiae  dominii  sui  .  .  .  quod 
Willelmus  de  Latton  implacitavit  eundem  G[aufridum]  in  curia  episcopi 
de  praedictis  terris  et  in  tantum  deducta  fuit  [loquela]  quod  praedictus 
G[aufridus]  venit  in  curia  et  petiit  visum  terrae  et  habuit.  Postea  ad 
diem  sibi  datum  venit  G[aufridus]  .  .  .  et  posuit  se  in  magnam  assisam 
tantum  de  una  terra  scilicet  de  Silkesworth  si  illam  ^  habere  possit  [et 
cum  non]  possit  illam  habere  optulit  illam  ^  defendere  per  corpus  cujus- 
dam  Hberi  hominis  sui  et  protulit  [breve]  de  pace  solummodo  de  terra  de 
Silkesworth  ne  episcopus  inde  teneret  placitum  in  curia  sua  [quia  ?  ]  idem 
G[aufridus]  inde  posuit  se  in  magnam  assisam.  Quod  breve  cum  susce- 
pisset  episcopus  consuluit  suos  quod  super  breve  regis  ei  esset  agendum 
cum  nulla  magna  assisa  haberetur  in  curia  sua  ita  quod  providerunt  inter 
se  qui  inquirerent  ab  ipso  G[aufrido]  an  mallet  praedictam  terram  de- 
fendere per  duellum  an  tenere  se  ad  magnam  assisam  et  ad  breve  regis ; 
et  ipse  elegit  duellum  et  per  corpus  ipsius  vadiavit  duellum  de  una  terra  et 
per  corpus  alterius  vadiavit  duellum  de  alia  terra,  unde  nullum  breve 
accideret :  et  hoc  offert  derationare  in  curia  sicut  in  curia  qui  recordum 
habet,  et  si  hoc  opus  ei  habere  non  poterit  per  considerationem  curiae 
domini  regis  .  .  .  salva  dignitate  curiae  domini  episcopi.  E  contrarie 
Gaufridus  defendit  quod  nunquam  .  .  .  sicut  versus  illam  qui  recordum 
non  habet  nee  unquam  habuit,  et  offert  derationare  .  .  .  quod  ita  est  ut 
ipse  dicit  vel  defendere  quod  non  ita  est  .  .  .  et  petiit  juratam  per  legales 
homines  qui  non  sunt  de  libertate  episcopi  ut  per  eosdem  .  .  .  Dunel- 
mensis  episcopus  .  .  .  tempore  regis  Henrici  patris  usus  est  .  .  . 
eadem  libertate.  .  .  .  Et  si  curia  ilia  tunc  temporis  habuit  [recordum  ?] 
.  .  .  coram  rege  ad  hoc  recognoscendum  xii  mihtes  de  comitatu  Ebor. 
et  xii  de  comitatu  Northumb.  qui  non  sint  de  libertate  episcopi ;  postea 
praeceptum  [fuit]  .  .  .  quod  episcopus  venire  faceret  xii  milites  .  .  . 
ad  hoc  recognoscendum  .  .  .  de  libertate  sua,  et  ita  quo  teneam  nodo 
mutantem  Prothea  vultus."  ^ 

It  is,  unfortunately,  more  than  probable  that  the  frequent  and  tantaliz- 
ing lacunae  in  the  text  of  this  record  can  never  be  filled  out.     Seemingly 

1  This  must  refer  to  "assisam"  rather  than  to  "terra,"  for  it  was  uncertain 
whether  the  grand  assize  could  be  taken  in  the  Bishop's  court  at  this  date,  and 
shortly  afterward  the  community  of  the  bishopric  purchased  a  royal  charter  defi- 
nitely according  to  them  that  privilege.     See  Rot.  Chart.,  lo  John,  182  a. 

2  This  of  course  refers  to  "  terra." 

3  "  Quo  teneam  vultus  mutantem  Protea  nodo  ?  "  Horace,  Epist.,  lib.  i.  epist.  i. 
1.  90.  The  case  is  recorded  on  the  Curia  Regis  Roll,  7-8  John,  No.  36,  m.  13.  A 
brief  and  unintelligent  condensation  will  be  found  in  Abbrev.  Plac,  94. 


GEOFFREY  FITZ  GEOFFREY'S  CASE.  315 

the  reporter  did  not  understand  the  case,  for,  having  entered  it  once  on 
the  roll,  he  cancelled  what  he  had  written  and  followed  it  by  a  second 
report  in  somewhat  different  form ;  possibly,  therefore,  he  is  responsible 
for  the  apposite  though  misquoted  verse  of  Horace  with  which  the  record 
closes.  The  handwriting  is  bad,  the  ink  faint,  and  the  parchment  much 
stained,  rubbed,  and  worn.  It  had  previously  been  subjected  to  some 
severe  method  for  redeveloping  the  ink,^  so  that  sizing  and  other  treat- 
ment by  the  present  author  produced  little  reaction.  Finally,  a  high 
authority  on  palaeography,^  who  carefully  examined  the  document  and 
kindly  filled  out  many  gaps  in  the  writer's  transcript,  expressed  the 
opinion  that  it  would  be  impossible  to  recover  or  restore  any  more  of 
the  text. 

The  main  question  raised  is  whether  the  Bishop's  court  shall  be  assimi- 
lated to  the  seignorial  or  to  the  royal  courts  of  the  kingdom ;  in  other 
words,  whether  the  Bishop's  court  is  a  court  of  record  competent  to  con- 
duct the  business  of  the  grand  assize  and  other  convenient  forms  of  pro- 
cedure to  be  found  only  in  the  royal  courts,  or  whether  it  must  submit  to 
the  king's  writ  and  resign  cognizance  of  a  plea  when  one  of  the  parties 
demands  recourse  to  the  new  procedure.  The  answer  to  this  question 
involves  a  definition  of  the  Bishop's  franchise,  and  the  issue,  therefore,  is 
whether  that  franchise  is  competent  to  exclude  the  king's  jurisdiction 
or  not.  The  Bishop's  counsel  accepts  this  issue  and  affirms  the  compe- 
tence of  the  episcopal  court.  This  contention  is  corroborated  by  the 
king's  charter  and  by  the  historical  argument  that  pleas  were  held  by 
the  Bishop's  writ  in  the  time  of  Hugh  Pudsey,  and  also  by  the  action  of 
the  tenant ;  for  Geoffrey  went  far  toward  conceding  the  principle  of  the 
Bishop's  exclusive  jurisdiction,  when,  although  having  the  king's  writ  in 
respect  to  at  least  one  of  the  tenements  in  question,  he  went  to  the  duel. 

Now  the  logical  conclusion  of  the  Bishop's  proposition  is  that  whatever 
advantage  the  king  furnishes  to  his  justiciables  the  Bishop  shall  provide 
for  his.  But  the  Bishop  was  neither  ready  nor  able  to  meet  the  emer- 
gency, for  the  offer  made  to  Geoffrey  was  this  :  Will  you  defend  by  your 
body  or  will  you  stand  by  your  writ  of  peace  and  your  claim  of  a  grand 
assize  ?  It  is  not  admitted,  however,  that  if  Geoffrey  chooses  the  second 
alternative  the  Bishop  will  obey  the  writ  and  suspend  proceedings.  Geof- 
frey is  required  to  make  his  choice,  and,  if  he  sticks  to  his  writ,  may  be 

^  Possibly  at  the  hands  of  the  compiler  of  the  Abbreviatio  Placitorum,  who 
certainly  did  not  understand  the  case  and  made  a  very  bad  botch  of  his 
condensation. 

*  Mr.  Scargill-Bird  of  the  Public  Record  Office. 


3l6  APPENDIX  I. 

told  that  such  a  writ  is  out  of  place  in  Durham.  This  answer  indeed, 
was  given  him,  and  then,  the  Bishop's  counsel  said,  Geoffrey  abandoned 
his  writ  and  waged  battle  as  regards  both  pieces  of  land.  The  question 
is  left  open,  and  Geoffrey  brings  it  before  the  king's  justices  for  deter- 
mination. What  answer  they  gave  we  do  not  know,  but  it  could  not 
have  been  final,  for,  as  we  have  seen,  the  men  of  the  bishopric  soon 
afterward  fined  with  the  king  for  permission  to  have  the  assizes  of  the 
kingdom.^  The  use  of  these,  no  doubt,  became  familiar  at  Durham 
during  the  long  vacancy  of  the  see  from  1208  until  12 17,  when  the  local 
court  was  in  the  king's  hands,  and  it  was  probably  continued  without 
question  on  the  next  Bishop's  accession. 

Geoffrey  seems  to  have  belonged  to  a  well-known  family  of  the 
bishopric  descended  from  a  nephew  or,  as  is  more  probable,  a  son 
of  Ranulf  Flambard,  who  obtained  from  the  Bishop  the  lordships  of 
Silkesworth  and  Horden.^  It  is  probable,  therefore,  that  we  should 
read  "  Horderum ''  rather  than  "  Borderum,"  as  it  stands  in  the  text. 
Such  a  slip  would  have  been  easy  for  a  scribe  unfamiliar  with  local 
names.  A  William  de  Latona  toward  the  close  of  the  twelfth  century 
tests  two  charters  conveying  lands  in  Silkesworth  held  of  Geoffrey,  lord  of 
Horden  and  Silkesworth ;  ®  and  it  is  possible  that  this  man  held  of  the 
same  lord,  and  that  he  or  his  son  was  the  demandant  when  this  case 
came  up  in  the  Bishop's  court. 

1  Rot.  Chart.,  10  John,  182  a;  Pipe  Roll  13  John,  in  Boldon  Book,  App.  xv. 

2  See  Surtees,  Durham,  i.  pt.  ii.  243-244;  Feodarium,  123-125. 
2  Feodarium,  124,  125. 


APPENDIX   II. 

THE   ADMIRALTY  JURISDICTION   OF  THE   BISHOPS 
OF   DURHAM. 

There  is  very  little  definite  knowledge  of  the  courts  of  admiralty  in  the 
kingdom  previous  to  the  sixteenth  century.  The  earliest  patent  for  an 
admiralty  judge  dates  from  the  reign  of  Edward  IV,  but  the  regular 
series  of  admiralty  records  does  not  begin  until  1524.  The  jurisdiction 
appears  to  have  taken  shape  under  the  pressure  of  increased  maritime 
relations  in  the  reign  of  Edward  III.  Before  this  the  incidents  of  the 
king's  admiralty  prerogative  —  the  spoil  of  wreck,  the  right  to  royal  fish, 
and  the  like  —  were  attended  to  by  means  of  writs  to  the  sheriff  or 
by  special  commissions  of  oyer  and  terminer,  while  disputes  not  touch- 
ing the  king  were  settled,  so  far  as  possible,  in  those  privileged  towns 
that  had  port  jurisdiction.  After  1357,  however,  it  became  necessary  to 
erect  some  sort  of  tribunal  in  which  foreigners  might  plead  who  had 
claims  against  the  crown  based  on  the  depredations  of  English  pirates  or 
the  like  offences.-^  In  tracing  the  history  of  the  admiralty  jurisdiction  of 
the  Bishops,  then,  we  must  first  try  to  discover  how  early  and  to  what 
extent  they  enjoyed  the  attributes  of  admiralty  prerogative  and  the  right 
to  grant  or  regulate  port  jurisdiction. 

The  Bishop's  right  to  whatever  might  be  cast  up  by  the  sea  on  the 
coast  of  his  province,  such  as  wreck,  royal  fish,  or  the  like,  is  first  defi- 
nitely heard  of  very  early  in  the  twelfth  century.  The  story  refers  to 
a  much  earlier  period  (the  incident  occurs  in  connection  with  one  of 
S.  Cuthbert's  miracles),  but  may  safely  be  accepted  as  evidence  of  a 
st^te  of  things  contemporary  with  its  authorship.^  In  the  twelfth  cen- 
tury the  royal  right  of  wreck  was  being  defined  and  limited,  and  before 
the  reign  of  John  it  was  regulated  by  a  well-ascertained  rule  of  law.* 
Very  early  in  the  thirteenth  century  we  find  the  Bishop  in  exclusive  pos- 

1  Marsden,  Select  Pleas  in  the  Court  of  Admiralty  (Selden  Soc),  Introd. 

2  Symeon,  ii.  343. 

8  Blackstone,  Commentaries,  book  i.  ch,  viii. 


3l8  APPENDIX  II. 

session  of  this  right  in  his  province  and  engaged  in  an  angry  dispute  as 
to  the  prior's  share  in  the  privilege.  The  testimony  brought  forward  on 
either  side  throws  a  curious  Hght  on  the  whole  question.  The  bulk  of 
evidence  produced  by  each  party  in  the  suit  is  about  equal,  but  the  wit- 
nesses on  behalf  of  the  Bishop  were  of  much  higher  rank  than  those  of 
the  prior.  The  prior's  witnesses,  on  the  other  hand,  swore  to  seven  spe- 
cific cases  in  which  boats,  cobles,  ships  or  their  cargoes,  or  drowned 
beasts  had  gone  ashore  on  the  prior's  lands  and  been  taken  by  him  as 
wreck.  These  cases  had  occurred  during  the  pontificates  of  Bishops 
Pudsey,  Philip  of  Poitou,  and  Richard  Poor,  and  in  one  instance  the 
deponent  swore  that  the  Bishop's  officers  knew  of  the  proceeding.^ 

Although  the  Bishop  brought  eleven  witnesses,  only  two  of  them  re- 
lated a  specific  case.  But  this  one  is  very  interesting.  Oliver  Fitz  Rol- 
land  deposed  that  he  had  never  himself  seen  a  wreck,  but  he  related 
one  out  of  the  many  cases  that  had  occurred  in  the  pontificate  of  Bishop 
Philip.  A  ship  laden  with  corn  and  wine,  having  anchored  off  Wear- 
mouth,  a  place  which  belonged  to  the  prior,  was  blown  ashore  and  broken 
up,  although  all  the  crew  escaped  alive.  Complaint  was  then  made  to 
the  Bishop  that  the  men  of  the  prior  had  carried  off  the  merchandise 
which  formed  the  ship's  cargo,  and  on  this  the  Bishop  sent  the  deponent 
and  others  to  arrest  the  persons  accused  and  lodge  them  in  the  Bishop's 
prison.  This  was  accordingly  done  ;  whereupon  Helyas  Busard,  one  of 
the  monks  of  Durham,  excommunicated  the  deponent  and  his  compan- 
ions ;  but,  when  complaint  was  made  to  the  Bishop,  the  monk,  confess- 
ing that  he  had  acted  foolishly,  withdrew  his  excommunication,  and  the 
goods  were  eventually  restored  to  the  men  of  the  ship.  Oliver  explained 
that  this  was  not  wreck,  because  the  ship's  company  had  escaped  alive ; 
but  that  whenever  a  ship  perished  with  all  her  company  in  any  part  of 
the  bishopric,  it  was  wreck  and  belonged  to  the  Bishop.^  Alexander  de 
Elmedone  said  that  he  knew  this  story  and  had  been  present  when  the 
monk  withdrew  the  sentence  of  excommunication.^  The  rest  of  the 
Bishop's  evidence  consisted  of  general  assertions  of  prerogative,  of  which 
the  following  is  a  type  :  "  Rogerus  de  Andrei,  miles,  juratus  et  requisitus 
.  .  .  de  wrec,  dicit  quod  nunquam  vidit  contingere,  sed  dicit  quod  cer- 
tus  est  quod  episcopus  debet  habere  in  cujuscumque  terra  evenerit,  et 
hac  racione  quia  solus  habet  regalitatem  in  partibus  illis."  *     However 

1  Attestaciones  Testium,  in  Feodarium,  265,  270-271,  273,  276,  278,  279,  285  (the 
case  in  which  the  Bishop's  officers  are  said  to  have  been  aware  of  the  proceeding), 
288. 

2  Ibid.,  246.  3  Ibid.,  247. 

*  Ibid.,  230-231,  and  see  also  225,  226,  232,  235,  237,  243,  247,  253. 


THE  BISHOP'S  ADMIRALTY  JURISDICTION.  319 

the  case  stood  as  between  the  Bishop  and  the  prior, ^  it  is  clear  that  in 
the  bishopric  at  this  time  the  king  would  take  nothing  from  a  wreck. 

In  1302,  after  the  palatine  records  had  been  examined,  a  memorandum 
was  made  with  respect  to  the  Bishop's  right  of  wreck  in  Sadberg,  a  dis- 
trict which  included  the  considerable  seaport  of  Hartlepool.  Three 
cases  from  the  pontificate  of  Richard  Poor  are  enumerated,  in  all  of 
which  the  Bishop  defeated  the  efforts  of  Peter  de  Brus,  lord  of  the 
manor  of  Hart,  to  assert  a  right  to  have  wreck  at  Hartlepool.  Finally 
by  the  intercession  of  the  earls  of  Albermarle  and  Lincoln  the  matter 
was  adjusted,  "  ita  quod  ab  illo  die  episcopus  habuit  wreccum  maris, 
quotienscunque  contigit,  pacifice  sine  contradictione  Petri  de  Brus  et 
omnium  aliorum."  ^  It  was  likewise  found  that  during  the  subsequent 
vacancy  of  the  see  a  boat  wrecked  at  Hartlepool  and  a  whale  that  went 
ashore  there  became  the  property  of  the  king,*  and  that,  during  the  pon- 
tificates of  Bishops  Nicholas  de  Farnham  (i  241-1249)  and  Walter  Kirk- 
ham  (1249-12 60),  "nulla  fuit  contentio  de  wrek,  quia  episcopus  habuit 
totem  wrek  .  .  .  sine  contradictione."  * 

In  13 15  the  Bishop  excommunicated  those  who  should  infringe  the 
right  of  wreck  enjoyed  by  the  monks  of  Fame  under  episcopal  confirma- 
tion.^ In  the  same  year  a  case  arising  out  of  the  loss  of  a  ship  on  the 
coast  of  the  bishopric  was  by  the  king  referred  to  the  Bishop  for  trial.** 
In  1 34 1  the  king  issued  a  commission  of  oyer  and  terminer  for  the  dis- 
covery and  trial  of  certain  persons  who  had  infringed  the  right  of  wreck 
which  from  time  immemorial  the  Bishops  had  enjoyed  in  Hoveden.'  In 
1343,  when  two  sturgeons  and  two  whales,  which  had  come  ashore  at  the 
same  place,  were  carried  away  in  defiance  of  the  Bishop's  right,  a  similar 
commission  was  ordered.^  In  1364  occurred  the  case  of  a  whale  cast 
ashore  at  Seaton  Carrowe  and  appropriated  by  the  lord  of  the  manor,  who 
for  this  infringement  was  obliged  to  fine  with  the  Bishop.®  In  14 10  the 
Bishop  received  £(^  14J.  3^.  as  the  proceeds  of  a  wreck  at  Hartlepool.^'' 
In  1432  Bishop  Nevill  granted  a  limited  right  of  wreck  to  the  lord  of  a 
manor  in  the  bishopric  ;  the  grantee  paid  an  annual  rent  and  engaged  to 
surrender  to  the  Bishop  half  of  any  royal  fish  or  great  ships  that  came  to 

1  It  waD  agreed  that  the  proceeds  of  wreck  occurring  on  the  prior's  land  should 
be  divided  between  him  and  the  Bishop.     See  Le  Convenit,  in  Feodarium,  215. 
"^  Registrum,  ii.  46-48.  3  ibid. 

*  Ibid.,  and  see  also  p.  60 ;  of.  Surtees,  Durham,  iii.  100. 
^  Registrum,  ii.  734.  ^  Ibid.,  1109;  above,  pp.  230-231. 

'  Registrum,  iv.  251-252.  ^  Foedera,  ii.  pt.  ii.  1225. 

®  Rot.  i.  Hatfield,  ann.  19,  m.  14,  curs.  30;  above,  p.  150. 
^^  Sheriff's  account,  A.  D.  1410,  auditor  i.  No.  2. 


320  APPENDIX  IT. 

shore  on  his  manor. ^  By  this  time  the  admiralty  jurisdiction  of  the  king- 
dom was  already  well  known,  and  one  of  the  subjects  of  inquiry,  when  the 
admiral  or  his  representative  visited  any  port  judicially,  had  reference  to 
wreck  and  royal  fish.^  In  one  respect,  then,  the  Bishop  has  advanced 
far  toward  the  development  of  a  local  admiralty  jurisdiction. 

In  like  manner,  on  the  visitation  of  seaports,  inquiry  was  made  with 
regard  to  the  obstruction  of  rivers,  creeks,  or  water-courses  by  mills, 
bridges,  weirs,  kiddels,  and  the  hke.^  But  from  the  twelfth  century  the 
Bishops  of  Durham  had  had  jurisdiction  over  the  coasts  of  the  bishopric, 
including  the  southern  bank  of  Tyne,  with  respect  to  the  landing  of  ships 
and  traffic,  and  in  the  fourteenth  century  they  were  issuing  commissions 
to  inquire  into  obstruction  of  traffic.  Henry  II  had  granted  to  Bishop 
Pudsey  the  right  to  take  port  dues  from  ships  touching  at  the  southern 
bank  of  the  Tyne.*  This  right  was  in  dispute  between  the  prior  and  the 
Bishop  in  1228,  and  Adam  de  Prestone  testified  that  in  the  time  of  Bishop 
Pudsey  he  had  twice  seen  customs  taken  from  ships  at  BilHngham,  which 
belonged  to  the  convent.^  The  natural  inference  is  that  this  was  a  regu- 
lar practice  in  the  Bishop's  lands,  and  this  view  is  confirmed  by  the  fact 
that  in  Le  Convenit  ^  the  Bishop  reserved  to  himself  all  the  customs 
of  ships  on  the  river  Tees,  saving  to  the  prior  his  right  of  a  ferry  at 
Billingham.' 

In  13 14  the  mayor  and  bailiffs  of  Newcastle,  who  had  been  interfering 
with  the  Bishop's  rights  over  the  southern  part  of  the  Tyne  and  with  the 
privilege  of  his  subjects  in  the  navigation  of  that  river,  were  checked  by 
the  king's  writ.^  This  principle  is  expressed  in  an  inquisition  professedly 
taken  in  the  reign  of  Henry  I  and  recorded  in  that  of  his  nephew,  but 
known  to  us  only  as  it  appears  in  the  register  of  Bishop  Kellaw :  "  A 
Stanliburn'  usque  ad  Tynemeuth',  videlicet,  usque  in  mare,  medietas 
aquae  de  Tyna  pertinet  ad  Sanctum  Cuthbertum  et  ad  episcopum 
Dunolmensem,  et  alia  medietas  ad  comitatum  de  Northumbria ;  tertia 
pars,  in  medio  aquae,  erit  communis  et  libera."  ®     During  the  pontificate 

1  Rot.  iv.  Nevill,  ann.  9,  m.  8,  curs.  45. 

2  De  Officio  Admiralitatis  Anglie  una  cum  Articulis  concernentibus  idem  Officium 
(London,  1540),  art.  ix,  xxiii. 

3  Ibid.,  art.  vii. 

*  "  Et  volo  et  firmiter  praecipio  quod  habeant  libere  et  honorifice  etquiete  appli- 
cationes  navium  de  parte  sua  in  Tina,  sicut  habentur  ex  altera  parte  " :  Scriptores 
Tres,  A  pp.  No.  xxxv. 

s  Feodarium,  253. 

*  For  this  document,  see  above,  p.  169,  and  below,  App.  iii. 
^  Le  Convenit,  in  Feodarium,  215. 

*  Registrum,  ii.  1014-1015.  ®  Ibid.,  iii.  40. 


THE  BISHOP'S  ADMIRALTY  JURISDICTION.        32 1 

of  Bishop  Bury  this  right  was  called  into  question,  and  the  king  issued  a 
commission  to  inquire  into  obstructions  of  navigation  in  the  river  Tyne. 
His  commissioners,  in  their  effort  to  remove  weirs  and  kiddels  in  the 
southern  part  of  the  river,  and  in  general  to  regulate  navigation,  met  with 
opposition  from  the  Bishop,  who  proceeded  against  them  in  his  courts 
and  eventually  outlawed  them.  The  king  protested,  and  ordered  the 
Bishop  to  relax  the  outlawry  and  allow  the  commissioners  to  discharge 
their  duties  lest  a  worse  thing  befall  him.^  The  Bishop's  answer  was  to 
issue  his  own  commission  to  inquire  into  infringements  of  his  rights 
in  the  southern  half  of  the  river  and  the  interference  with  the  freedom 
of  commerce  on  the  shores  of  the  river  and  coasts  of  the  bishopric  which 
he  and  his  subjects  ought  to  enjoy. ^  It  does  not  appear  in  what  manner 
the  question  was  eventually  settled,  but  in  the  next  century  we  find  the 
Bishop  issuing  a  commission  to  inquire  into  the  state  of  the  rivers  in  his 
province.^ 

In  early  times  ordinary  port  jurisdiction  supplied,  however  ineffectu- 
ally, the  place  of  the  later  admiralty  courts.*  Accordingly  in  the  charter 
by  which  Bishop  Pudsey  erected  the  borough  of  Wearmouth,  it  is  pro- 
vided that  "  si  placitum  fuerit  inter  burgensem  et  mercatorem  errantem, 
infra  tertiam  maris  infiuxionem  rectum  inter  se  faciant."  ^ 

Since,  then,  the  Bishops  had  such  privileges  and  regalities,  we  shall  not 
be  surprised  to  find  them  disposing  of  cases  which  from  their  nature  would 
have  been  dealt  with  in  a  court  of  admiralty,  had  such  an  institution  ex- 
isted in  the  palatinate.  This  point  is  illustrated  in  the  early  fourteenth 
century  by  three  cases,  which  have  already  been  noticed.  Two  of  them 
involve  the  recovery  of  goods  and  a  ship  in  dispute  between  the  king 
and  certain  merchants  by  reason  of  piracy  and  an  alleged  wreck.  The 
property  had  been  taken  to  the  palatinate  and  was  brought  back  by 
royal  writs  sent  to  the  Bishop.^  The  third  case,  which  turned  on  the 
recovery  of  goods  cast  ashore  in  the  bishopric  when  it  was  alleged  that 
there  had  been  no  wreck,  was  referred  to  the  Bishop  with  directions  to 
hear  the  complaint  of  the  injured  party  and  to  do  him  full  justice.'  This 
was  in  all  probability  disposed  of  by  the  Bishop  in  council. 

1  Registrum,  iv.  258-261.  *  ibid.,  334-337. 

8  Rot.  ii.  Nevill,  ann.  7,  m.  8,  curs.  43. 

*  De  Officio  Admiralitatis,  etc.,  art.  xxxviii ;  Marsden,  Select  Pleas  in  the  Court 
of  Admiralty  (Selden  Soc),  Introd. 

5  Boldoii  Book,  App.  xli. 

^  Registrum,  ii.  1025-1027 ;  Calendar  of  Close  Rolls,  1318-1323,  p.  62 ;  above, 
p.  245. 

■^  Registrum,  ii.  1109;  above,  pp.  230-231. 

21 


322  APPENDIX  II. 

In  1432  there  is  a  case  which  throws  much  light  on  the  subject.  In 
that  year  a  ship  was  wrecked  and  came  ashore  with  her  cargo  of  mer- 
chandise on  the  coast  of  the  palatinate ;  both  the  ship  and  her  cargo 
were  then  carried  off  by  the  people  of  the  place  where  the  alleged  wreck 
had  occurred.  Thereupon  Henry  Hoop  and  other  merchants  of  the  Hanse 
represented  to  the  Bishop  of  Durham  that  the  ship  and  her  cargo  were 
their  property  and  were  consigned  to  Germany  under  command  of  a 
master  in  their  employ,  and  that  no  foreigner  was  on  board  or  in  any  way 
concerned  in  the  matter.  On  these  considerations  therefore  they  prayed 
restitution  of  their  property  under  the  statute  which  provided  for  such 
cases. ^  Accordingly  the  Bishop  issued  his  precept  to  the  coroner  of  the 
Easington  ward  directing  him  to  seize  any  goods  that  seemed  likely  to 
be  those  of  the  complainants,  wherever  and  in  whosesoever  possession  they 
might  be  found.  The  coroner  was  further  to  invite  the  complainants  or 
their  attorneys  to  prove  their  title  to  the  goods  so  seized,  which  would 
then  be  immediately  returned  to  them,  after  a  reasonable  allowance  for 
salvage  had  been  deducted.  If  for  any  reason  it  appeared  that  restitu- 
tion should  not  be  made,  the  coroner  was  to  come  before  the  Bishop  in 
chancery  and  give  his  reasons  for  withholding  the  goods.^  Here,  then, 
is  an  instance  in  which  a  matter  which  obviously  should  have  been 
dealt  with  in  a  court  of  admiralty  was  disposed  of  by  the  Bishop  in  his 
chancery. 

In  1433  we  have  a  case  essentially  similar  to  this  although  of  some- 
what different  aspect.  The  Bishop  was  notified  by  letters  under  the  com- 
mon seal  of  the  town  of  Bruges  that  a  ship  and  her  cargo,  the  exclusive 
property  of  certain  merchants  of  Bruges,  had  been  carried  to  Newcastle- 
upon-Tyne  and  the  cargo  there  distributed  as  contraband  of  war  (bona 
inimicorum).  Some  of  these  goods  had  subsequently  found  their  way 
into  the  palatinate.  The  Bishop  accordingly  issued  a  commission  of 
oyer  and  terminer,  directing  a  search  for  these  goods,  which,  wherever 
found,  were  to  be  seized  and  restored  to  the  complainants.^  A  case  that 
arose  in  1447,  although  it  has  already  come  before  us,  cannot  be  omitted 
here.  In  that  year  a  ship  belongihg  to  certain  merchants  of  Aberdeen, 
returning  from  Flanders  where  she  had  taken  a  cargo  of  merchandise, 
went  ashore  at  South  Shields  in  the  palatinate,  and  apart  of  the  cargo, 
having  come  to  land,  was  seized  by  the  Bishop's  officers.  The  owners 
of  the  ship  thereupon  represented  to  the  Bishop  that,  by  the  provisions  of 

1  27  Edw.  Ill,  cap.  xiii,  Statutes,  i.  338. 

2  Rot.  C,  Langley,  ann.  26,  m.  6,  curs.  2^- 
^  Ibid.,  ann.  27,  m.  7,  curs.  36. 


THE  BISHOP'S  ADMIRALTY  JURISDICTION.        323 

a  treaty  between  England  and  Scotland,  in  cases  of  wreck  where  there 
were  any  survivors  such  goods  as  were  rescued  should  be  restored  to  their 
owners  whole  and  entire,  barring  allowance  for  reasonable  expenses  in 
collecting  and  keeping  them  ;  provided  always  that  an  appeal  were  made 
within  a  year  of  the  event  before  the  justices  competent  in  the  place 
where  the  goods  had  been  found.  Accordingly  the  Bishop  issued  his 
commission  of  oyer  and  terminer  directing  that  the  parties  be  heard  and 
that  justice  be  done  in  the  case.^  In  1500  a  case  relating  to  the  posses- 
sion of  a  ship  belonging  at  South  Shields  in  the  palatinate  and  held 
in  part  ownership  by  persons  in  that  town  and  Newcastle-upon-Tyne, 
was  dealt  with  in  the  Bishop's  chancery.^ 

During  the  reign  of  Henry  VIII  the  admiralty  jurisdiction  of  the  king- 
dom was  reformed  and  the  courts  reorganized.^  It  is  not  probable  that 
any  admiralty  court  was  set  up  in  Durham  at  this  time  ;  the  old  machinery 
was  sufficient  for  the  purposes  of  that  limited  district.  The  impetus  to 
erect  such  a  tribunal  appears  to  have  been  given  by  the  eifort,  made  in 
the  seventeenth  century,  to  bring  the  palatinate  under  the  jurisdiction  of 
the  royal  court  of  admiralty.  Thus  in  16 19  the  duke  of  Buckingham, 
then  admiral  of  England,  issued  a  warrant  appointing  Matthew  Dodes- 
worth  admiralty  judge  for  Northumberland,  Cumberland,  and  the  bish- 
opric of  Durham.*  This  may  have  been  done  under  a  strained 
interpretation  of  the  act  of  1536,  which  vested  in  the  crown  the 
power  to  appoint  all  common-law  judges  in  the  palatinate.^  In  1635 
at  BedHngton,  a  parcel  of  Durham  although  lying  in  Northumberland, 
serious  trouble  arose  between  the  crews  of  two  vessels,  one  from  Holland 
and  the  other  from  Dunkirk.  The  combatants  were  lodged  in  the  pala- 
tine gaol,  but  the  case  was  referred  to  the  Council  of  the  North,  which 
had  to  a  great  extent  taken  over  the  jurisdiction  of  the  Bishop.^  It  is 
not,  however,  until  1640  that  any  objection  to  this  arrangement  seems  to 
have  been  made.  In  that  year  the  Bishop  protested  against  a  grant  of 
certain  rights  on  the  river  Wear  which  had  been  made  by  the  duke  of 
Northumberland,  then  admiral  of  England.  To  these  rights  the  Bishop 
himself  laid  claim  as  "  a  privilege  and  perquisite  properly  belonging  to 
my  jurisdiction  of  admiralty."  ^ 

1  Rot.  ii.  Nevill,  ann.  9,  m.  13,  curs.  43 ;  above,  pp.  245-246.  Cf.  also  Calendar 
of  Patent  Rolls,  1461-1467,  pp.  489,  492,  552,  and  Ibid.,  index,  s.  v.  "  Wreck." 

2  Rot.  iii.  Fox,  ann.  6,  m.  6  dorse,  curs.  62. 

8  Marsden,  Select  Pleas  in  the  Court  of  Admiralty  (Selden  Soc),  Introd. 

4  Admiralty  Records,  Miscellaneous  Bundles,  ii.  No.  239,  Record  Ofi&ce. 

5  27  Hen.  VIII,  cap.  xiv,  Statutes  iii.  555, 

6  Calendar  of  State  Papers,  Domestic,  1635,  PP-  ZT^y  37 ^^  407- 
^  Spearman,  Inquiry,  32-34. 


324  APPENDIX  II. 

After  the  Restoration  we  find  that  this  claim  is  admitted.  The  Bishop 
of  Durham  is  then  "  admirallus  admiraUtatis  infra  comitatu  palatino  sive 
episcopatu  Dunehnense  "  \  ^  and  in  the  draft  of  an  act  settHng  the  juris- 
diction of  the  royal  court  of  admiralty  in  1661  there  is  a  proviso  that 
nothing  in  the  act  shall  be  construed  to  the  prejudice  of  the  "■  ancient 
jurisdiction  and  privileges  of  the  Bishops  of  Durham  in  the  admiralty, 
within  the  county  Palatine  of  Durham  and  Sadberg."  ^  j^  ^55^  Walter 
Ettrick  obtained  from  Bishop  Cosin  a  patent  granting  to  him  "  officium 
Registrarii  et  Scribatus  et  Registrariatus  actionum,  causarum  et  negotiorum 
quorumcunque  in  curia  nostra  nostra  [sic]  admiraUtatis  in  comitatu  pala- 
tino sive  episcopatu  Dunelmensi  ex  officio  nostro  mero,  mixto  vel  pro- 
moto  vel  ad  alicujus  partis  instantiam  moto  vel  movendo."  ^  The  terms 
of  this  document  do  not  admit  of  the  hypothesis  that  the  court  of  admi- 
ralty was  instituted  at  that  time.  In  1666  John  Sturfield  was  appointed 
marshal  and  serjeant-at-arms  of  this  court,  receiving  "officium  Mari- 
scaUi  et  Servientis  ad  clavam  curiae  vice-admiralitatis  in  comitatu  palatino 
sive  episcopatu  Dunelmensi  et  partibus  maridmis  ejusdem  .  .  .  prout 
aliquis  alius  antehac  idem  officium  .  .  .  habuit  et  tenuit."^  Finally, 
in  1683  we  meet  with  a  judge's  commission,  a  portentous  document,  de- 
tailing at  great  length  and  with  tedious  verbosity  the  scope  and  nature  of 
the  jurisdiction  of  the  palatine  court  of  admiralty.^  The  gist  of  this  docu- 
ment is  that  the  palatine  court  corresponded  in  all  essentials  to  the  high 
court  of  admiralty,  although  in  the  last  resort  subordinate  to  that  court. 

This,  then,  is  what  we  have  found.  From  a  period  very  shortly  after 
the  Norman  Conquest  the  Bishops  of  Durham  within  their  province  pos- 
sessed those  prerogatives  which  in  the  kingdom  developed  afterward  into 
admiralty  jurisdiction.  That  development,  between  the  reigns  of  Ed- 
ward III  and  Henry  VIII,  was  slow  and  incomplete ;  it  was  also  accom- 
plished largely  under  the  pressure  of  foreign  relations,  an  incentive  which, 
in  the  nature  of  things,  the  Bishops  of  Durham  could  not  feel.  The  Bish- 
ops, therefore,  enjoying  the  profits  of  admiralty  jurisdiction  and  disposing 
of  such  cases  as  arose  either  by  special  process  on  petition  to  their  coun- 
cil or  in  chancery,  had  no  inducement  to  institute  a  court  of  admiralty. 
During  the  sixteenth  century  the  special  jurisdiction  of  the  palatinate  was 
much  abridged  by  statute,  and  the  entire  province  was  subjected  to  the 
control  of  the  Council  of  the  North.  In  the  seventeenth  century  some 
effort  was  made  to  bring  the  bishopric  under  the  jurisdiction  of  the  high 
court  of  admiralty,  but  this  attempt  met  with  opposition.     After  the  Res- 

1  Admiralty  Records,  Miscellaneous  Bundles,  ii.  206,  Record  Office. 
'^  Lords'  Journals,  xi,  375.  »  Auditor  3,  No.  129. 

*  Ibid.,  No.  132.  5  Ibid.,  No.  133. 


THE  BISHOP'S  ADMIRALTY  JURISDICTION.        325 

toration  the  system  of  a  local  court  of  admiralty  is  found  to  be  in  full 
operation  and  is  referred  to  as  a  matter  of  ancient  right  and  custom. 

Under  these  circumstances  the  question  arises  as  to  what  were  the 
mutual  relations  of  these  two  jurisdictions.  The  evidence  is  troublesome 
and  confused,  a  circumstance  probably  due  in  large  measure  to  the  fact 
that  the  matter  itself  was  obscure  and  ill-defined.  One  thing,  however, 
seems  clear :  whatever  theory  may  have  been  expressed  or  allowed,  the 
practical  and  final  supremacy  of  the  royal  power  could  never  be  ques- 
tioned. In  the  actual  administration  of  naval  affairs  this  control  is  suffi- 
ciently evident ;  and  although  the  terms  of  the  admiral's  commissions  do 
not  necessarily  imply  jurisdiction  in  the  bishopric,  they  certainly  involve 
the  principle  of  ultimate  royal  control  there.^  It  is  clear  that  when  the 
palatine  admiralty  court  was  once  fairly  organized,  an  appeal  might  be 
taken  from  it  to  the  high  court  of  admiralty.*^  This  fact  appears  from  the 
case  of  Matthew  Crake,  who  in  1640  had  obtained  from  the  duke  of 
Northumberland  a  grant  of  rights  on  the  river  Wear,  against  which  the 
Bishop  protested.  The  matter  was  carried  to  the  high  court  of  admi- 
ralty, where  in  1663  judge  Exton  made  an  historical  report  in  the  Bish- 
op's favor,  citing  "  ancient  charters,  records,  and  evidences."  *  Again, 
under  the  terms  of  a  statute  of  Richard  11^  the  Durham  court,  like 
the  high  court  of  admiralty,  was  regarded  as  subject  to  prohibitions 
issuing  out  of  common  pleas.  An  instance  of  this  process  has  survived 
from  the  reign  of  Charles  II,  but,  beyond  its  address  to  the  Bishop  as 
earl  palatine  and  admiral  and  to  the  judge  of  the  local  court  of  vice- 
admiralty,  it  does  not  differ  from  the  form  ordinarily  employed  in  the 
kingdom.^ 

The  lords  of  other  franchises  besides  Durham  occasionally  enjoyed  a 
restricted  measure  of  admiralty  jurisdiction.  The  express  exclusion  of 
the  admiral  from  privileged  seaport  towns  was  not  uncommon  in  the 
fifteenth  century;  thus  in  1465  the  king  made  a  definite  grant  of  admi- 

1  Registrum,  iv.  192-194,  197-198,  200-203,  361-363;  Foedera,  iii.  pt.  i.  471; 
Rot.  Skirlaw,  ann.  14,  m.  26,  curs.  33;  Rot.  v.  Nevill,  ann.  8,  m.  21,  curs.  46;  above, 
§40. 

2  Spearman,  Inquiry,  32-34. 

^  Ibid.  Spearman  appears  to  have  had  access  to  this  document,  which  seems 
no  longer  to  exist.  Its  discovery,  at  least,  has  not  rewarded  a  search  through  the 
Durham  records,  and  Mr.  Marsden  informed  me  that  he  knew  of  nothing  of  the 
sort  among  the  admiralty  records.  Exton,  moreover,  in  his  work  on  the  admiralty 
(The  Maritime  Dicaeologie,  London,  1664,  fol.)  makes  no  mention  of  the  palatine 
jurisdiction. 

*  13  Ric.  II,  Stat.  i.  cap.  v.  Statutes,  ii.  62. 

5  Admiralty  Records,  Miscellaneous  Bundles,  ii.  206,  Record  Office. 


326  APPENDIX  IL 

ralty  jurisdiction  to  the  Bishop  of  Bath  and  Wells.  ^  In  1692  even  the  lord 
of  a  manor  in  Cornwall  went  so  far  as  to  lay  claim  to  such  jurisdiction 
within  his  manor. ^  The  Bishops  of  Durham,  as  we  have  seen,  enjoyed 
this  right  by  prescription,  for  they  never  produced  a  charter  in  support 
of  it ;  they  also  enjoyed  it  so  fully  as  to  be  able  to  alienate  part  of  the 
privilege  to  their  subjects. 

1  Rot.  Pat.  4  Edw.  IV,  pt.  ii.  m.  14. 

2  Newland  v.  Budden  and  Lord  Arundell,  Admiralty  Records,  Miscellaneous 
Books,  1057,  Record  Office. 


APPENDIX    III. 


THE  RECORDS   OF  THE   PALATINATE. 

The  manuscript  records  of  the  see  and  county  palatine  of  Durham  for 
any  period  earlier  than  the  sixteenth  century  are  extremely  unsatisfactory. 
These  records,  which  remained  (it  is  too  much  to  say  were  preserved)  at 
Durham  until  1870,  have  had  a  disastrous  history.  Already  in  the  early 
sixteenth  century  they  had  been  seriously  injured  by  carelessness  and  wil- 
ful destruction.^  Much  evil  of  this  sort  was  probably  accomplished  dur- 
ing the  disturbances  in  Durham  occasioned  by  the  Pilgrimage  of  Grace 
and  the  Rising  in  the  North,  but  the  most  serious  destruction  of  the 
records  occurred  in  the  seventeenth  century.  Bishop  Cosin  (1660- 
1672)  interested  himself  in  the  history  and  antiquities  of  his  province, 
and  seems  to  have  had  the  intention  of  publishing  a  book  on  this  sub- 
ject. To  this  end  the  most  valuable  and  ancient  records  were  collected 
and  set  apart  "  in  a  great  iron  chest,  which  used  to  be  kept  in  the  gate- 
house belonging  to  the  castle  at  Durham."  ^  At  Bishop  Cosin's  death 
the  contents  of  this  chest,  having  come  into  the  hands  of  his  executors, 
"  were  removed  with  the  Bishop's  other  writeings  to  Helperby,  in  York- 
shire, and  they  coming  afterwards  to  the  hands  of  Mr.  Basset  (who  mar- 
ryed  the  Lady  Gerrard,  and  became  intitled  to  the  greatest  part  of  the 
Bishop's  estate),  he  thought  fitt  for  preventing  disputes  which  might  arise 
about  his  estate,  to  direct  that  all  the  Bishop's  writeings  should  be  there 
burnt,  which  was  accordingly  done,  some  few  years  ago,  by  Mr.  Hen. 

1  Bishop  Tunstall  (1530-1559)  wrote  regarding  "the  recovery  of  such  charters 
and  writings  belonging  to  the  Churche  of  Durham  as  by  reason  of  my  L^  Cardi- 
nal [/.  e.  Wolsey]  were  comon  to  the  King's  hand,  which  I  have  received ; "  and 
again,  "  The  chauncery  of  Durham,  where  al  the  records  lay,  was  spoyled  as  wel  of 
records  as  off  all  odyr  stuff  that  was  ther."  In  1537  the  following  entry  occurs  on 
a  payment  roll :  "  Paid  the  mom  after  St.  Luke's  day  [19  October]  to  Marmaduke 
Clargenet  (5J.)  and  other  of  his  company,  and  Robert  Lewyn  (5J.)  for  helping  to 
save  the  records  in  the  chauncery,  in  the  time  of  spoyling  of  the  same,  ioj."  These 
citations  are  taken  from  Boldon  Book,  Pref.,  vii-viii.  The  records  of  the  English 
side  of  chancery  were  mostly  on  paper  and  were  ill  preserved,  and  they  have 
completely  disappeared.     See  Spearman,  Inquiry,  55-56;   above,  p.  189. 

2  This  is  from  a  manuscript  "  State  of  Records  of  y^  County  Palatine  of  Dur- 
ham," compiled  in  the  early  eighteenth  century,  quoted  in  Scriptores  Tres,  Pref.  xxi. 


328  APPENDIX  in. 

Jackson,  his  then  steward,  and  upon  this  occasion  there  were  eight  or 
nine  large  chests  of  writeings  all  burnt,  save  a  few  only  which  Parson 
Tong  endeavoured  to  secure,  as  relateing  to  the  rights  of  his  parish  of 
Brancepeth,  of  which  Bishop  Cousins  had  been  formerly  Rector."^ 
To-day  even  parson  Tong's  salvage  has  disappeared,  as  well  as  a  vol- 
ume of  precious  transcripts  much  used  by  Bishop  Cosin  and  known 
as  the  Red  Book.^ 

In  the  beginning  of  the  present  century  the  Durham  records  had 
jtlready  for  some  time  been  treated  with  conspicuous  neglect.  They 
seem,  indeed,  to  have  been  regarded  as  so  much  waste  paper  or  parch- 
ment; there  are  even  tales  of  broken  windows  stopped  with  medieval 
parchment,  and  of  kites  made  of  documents  invaluable  to  the  historian. 
The  awakened  interest  in  historical  studies  which  found  expression  in  the 
act  of  1838,  placing  the  public  records  under  the  direction  of  the  master 
Of  the  rolls,  extended  to  Durham  in  the  year  1854,  when  Sir  Thomas 
Duffus  Hardy  was  deputy-keeper.  By  the  record  act  all  the  records  of 
the  palatinate  were  placed  in  charge  of  the  master  of  the  rolls,  who  in 
1854  directed  the  deputy-keeper  to  go  to  Durham,  to  investigate  the 
manuscript  material  in  existence  there,  and  to  arrange  for  its  transfer  to 
London.  Hardy  discovered  that  the  framers  of  the  record  act  had  ex- 
ceeded their  authority  in  that  they  supposed  that  by  the  act  of  6  William 
IV,  cap.  xix,  the  palatinate  had  been  abolished,  whereas  in  fact,  although 
several  of  the  courts  had  been  swept  away,  the  chancery  remained  and 
the  palatine  franchises  had  been  vested  in  the  crown.®  The  removal  of  the 
records  was  strongly  opposed  at  Durham,  although  the  county  declined  to 
entertain  any  proposals  for  their  rearrangement  or  more  careful  preserva- 
tion. In  1868,  therefore,  the  master  of  the  rolls  issued  a  warrant  directing 
the  removal  to  London  of  all  the  records  of  the  see  and  the  palatinate,  and 
by  the  year  1870  this  had  been  accomplished.*    Hardy  found  the  records 

1  Scriptores  Tres,  Pref.  xxi. 

2  On  the  destruction  of  records  in  the  seventeenth  century,  see  Ibid.,  Pref.  xvi- 
xxiii;  Surtees,  Durham,  iv.  107. 

3  On  this  point,  see  above  pp.  205-206. 

*  For  the  details  of  this  matter,  see  Deputy-Keepers'  Reports,  No,  xvi  (1855), 
p.  2,  and  App.  iv.  44-93;  No.  xxix  (1868),  p.  xii,  and  App.  viii.  104-112;  No.  xxx 
(1869),  pp.  ix-xi,  and  App.  ii.  82  flf.  When  the  records  reached  London  a  large  part 
of  them,  consisting  of  ministers'  accounts,  were  claimed  by  the  Ecclesiastical  Com- 
missioners as  the  administrators  of  the  temporalities  of  the  see.  These,  after  some 
correspondence,  were  transferred  to  the  office  of  the  Ecclesiastical  Commission,  but 
subsequently  all  the  records  earlier  than  the  reign  of  Henry  VIII  were  by  that  body 
deposited  in  the  Record  Office,  where  they  are  not  produced  without  the  written 
permission  of  the  secretary  of  the  Commission. 


THE  RECORDS  OF  THE  PALATINATE.  329 

in  a  very  bad  condition.  They  had  been  kept  in  improper  places,  and 
were  in  such  a  state  of  disorder  and  neglect  that  he  was  obliged  to  sort 
and  arrange  them.  There  was  practically  no  calendar  or  even  catalogue, 
and  the  documents  from  careless  use  had  fallen  into  serious  confusion. 
Once  in  London,  they  were  carefully  cleaned,  arranged,  and  in  general 
made  available  for  the  student's  use.  A  series  of  calendars  was  at  once 
undertaken,  and  also  the  publication  of  Bishop  Kellaw's  register,  one  of 
the  earliest  and  in  many  respects  the  most  important  monument  in  this 
collection. 

A  large  proportion  of  the  manuscript  material  thus  placed  at  the  dis- 
posal of  students  consists  of  documents  later  than  the  reign  of  Henry 
VIII,  dating  for  the  most  part  from  the  seventeenth  and  eighteenth  cen- 
turies. Over  these  we  shall  not  linger ;  as  has  been  explained,  the  pres- 
ent study  concerns  itself  very  little  with  the  history  of  the  palatinate  after 
the  act  of  1536.  There  remain  the  manuscripts  for  the  period  1066- 
1536,  and  here  it  may  be  stated  that  practically  no  Anglo-Saxon  docu- 
ments relating  to  the  see  of  Durham  are  in  existence.-^  Also  at  this  point 
mention  will  be  made  of  manuscript  material  only ;  printed  sources  will 
be  noticed  later. 

Quite  the  most  important  of  the  manuscript  records  is  the  series  of 
palatine  chancery  rolls,  which  is  virtually  complete  from  the  pontificate 
of  Bishop  Richard  de  Bury  (1333-1345).  Forty  of  these  rolls,  varying 
in  size  and  importance,  cover  the  period  1333-1536.  The  first  four  of 
them  ( 1333-1388)  are  "  headed,"  or  made  up  of  membranes  joined  at  the 
top  in  the  exchequer  fashion;  the  rest  of  the  series  are  "continuous,"  or 
made  up  of  membranes  joined  end  to  end  in  the  chancery  fashion.  They 
are  on  the  whole  in  good  condition,  and  the  hand  is  generally  clear.  The 
use  of  this  material  is  greatly  facilitated  by  a  series  of  excellent  calendars 
extending  over  the  period  1333-1617.^ 

The  contents  of  these  rolls  are  of  the  most  varied  description,  for  the 
whole  business  of  the  chancery,  as  well  as  many  private  transactions,  are 
recorded  on  them.  The  public  instruments  consist  of  commissions  to 
the  justices,  patents  of  appointment  to  offices  of  one  sort  or  another, 
pardons,  and  the  enrolment  of  all  royal  documents  officially  commu- 

1  There  is  an  English  charter  of  Bishop  Ranulf  Flambard  to  the  convent,  and  a 
late  {1150)  English  charter  appropriating  a  church  and  chapel  in  the  bishopric  to 
the  see  of  York;  but  these  have  little  constitutional  value.  See  Feodarium,  98 
note ;  Crawford  Charters,  in  Anecdota  Oxoniensia,  Medieval  and  Modern,  pt.  vii. 

34-35- 

2  These  calendars  are  to  be  found  in  the  Appendixes  to  the  Deputy-Keepers' 
Reports,  Nos.  xxxi-xl  inclusive. 


330  APPENDIX  III. 

nicated  to  the  Bishop.  Besides  these  there  are  writs,  mandates  to  the 
sheriff  and  the  escheator,  transactions  and  occasionally  pleadings  in  chan- 
cery, and  a  great  mass  of  business  relating  to  private  contracts  and  other 
matters  that  could  be  managed  by  recognizance.  The  bulk  and  number 
of  the  rolls  increase  considerably  in  the  fifteenth  century.  Thus  the 
official  record  of  Bishop  Hatfield's  long  pontificate,  1345-1381,  is  con- 
tained in  two  rolls,  while  that  of  Bishop  Nevill,  1438-145  7,  only  half  as 
long,  extends  over  no  less  than  six  rolls.  All  of  these  documents  are 
grouped  in  the  class-list  at  the  Record  Office  under  the  head  of  "  Cur- 
sitors'  Records."  ^ 

Two  other  sources  of  much  importance  exist  under  the  same  head. 
The  first  of  these  is  a  chancery  file  for  the  pontificate  of  Bishop  Hat- 
field,^ which  contains  the  record  and  process  of  several  very  interesting 
cases,  together  with  a  large  number  of  inquisitions  post  mortem  and  ad 
quod  damnum^  and  some  similar  material  of  a  much  later  date,  which  has 
for  no  apparent  reason  been  included  in  this  bundle.  The  second  is  a 
package  of  miscellaneous  papers  containing  a  mass  of  all  sorts  of  mate- 
rial, varying  in  date  from  the  fifteenth  to  the  seventeenth  century ;  the 
earlier  part  consists  principally  of  precepts  to  the  chancellor  for  the  issue 
of  documents  under  the  great  seal,  such  as  pardons,  licences,  mandates, 
and  writs,  practically  the  only  original  documents  of  this  sort  that  we 
have.^  Another  interesting  record  in  this  class  is  the  original  privy  seal 
of  Bishop  Hatfield  appointing  a  chief  forester ;  this  is  in  French,  and  is 
addressed  to  the  chancellor  directing  him  to  issue  letters  patent  under 
the  great  seal.* 

The  Auditors'  Records  include  all  documents  connected  with  the 
fiscal  organization  of  the  palatinate.  Of  these  the  most  important 
are  the  ministers'  accounts,  which  for  our  period  are  sadly  defective. 
Besides  the  great  receipt  roll  of  1307,  which  being  in  print  will  be 
considered  later,  the  Auditors'  Records  comprise  a  small  number  of 
receiver-generals'  accounts  for  the  second  half  of  the  fifteenth  century, 
a  few  sheriffs'  accounts,  and  a  mass  of  account  rolls  and  indentures  of 
foresters,  baihffs,  superintendents  of  lead  and  iron  mines,  and  similar 
officers,  which  have  practically  no  bearing  on  the  subject  of  the  present 
study.  The  fullest  and  most  interesting  of  the  receiver-generals'  accounts 
is  for  the  year  1460-1461,^  but  the  others  also  have  much  value.*     The 

1  For  an  explanation  of  the  forms  in  which  the  manuscripts  are  cited,  see  below, 
p.  337. 

2  Cursitor,  154.  8  Ibid.,  211.  *  Ibid.,  145. 
s  Ecclesiastical  Commissioners,  ministers'  accounts,  189816. 

«  Ibid.,  1 898 1 4-1 89829,  189696-189698,  and  Auditor  5,  No.  149. 


THE  RECORDS  OF  THE   PALATINATE.  33 1 

earliest  sheriffs  account  is  for  the  year  1335-1336 ;  ^  no  other  occurs 
until  the  year  1409-1410,^  and  none  again  until  1477-1478,^  although 
three  sheriffs'  accounts  for  Norhamshire  have  survived  for  the  intervening 
period.*  From  1480  until  1536  about  half  the  years  are  represented.^ 
The  accounts  of  the  local  bailiffs  and  superintendents  of  mines,  as  has 
been  said,  contain  Httle  of  value. 

In  this  class  also  there  are  two  miscellaneous  bundles  containing  mate- 
rials of  widely  divergent  value.  The  first  of  these  includes  the  receiver- 
general's  account  for  1472,  several  coroners'  accounts  of  the  early 
sixteenth  century,  which  yield  but  little  information,  and  a  mass  of 
indentures  of  receipt  or  indebtedness,  which  throw  some  light  on  the 
methods  of  the  exchequer.  This  bundle  also  contains  the  accounts  of 
the  manager  of  the  Bishop's  property  in  London  in  1526-152  7,  and  a 
package  ticketed  "Documents  selected  to  be  retained  for  bundle  i8%" 
which  is  composed  of  late  seventeenth  and  eighteenth-century  documents 
of  a  miscellaneous  character.^  Another  and  similar  bundle  includes  a 
quantity  of  vouchers,  bills,  indentures,  warrants  to  the  exchequer,  and 
the  like,  principally  for  the  year  1 480-1 481,  which  are  of  considerable 
value."^  There  is  also  a  survey  of  the  Easington  ward  made  in  1388,  in 
the  form  of  a  small  paper  book,  which  affords  some  information.^  Finally, 
the  Auditors'  Records  also  contain  patents  for  the  appointment  of  a  regis- 
trar and  of  a  judge  of  the  palatine  admiralty  court,  documents  which 
although  late — 1660  and  1683  respectively  —  are  of  importance  for  our 
purpose  because  this  court  was  not  developed  until  the  close  of  the  six- 
teenth century.*  A  record  of  the  highest  value  is  the  exemplification  of 
a  number  of  fines,  pleas,  assize  rolls,  and  the  like,  all  of  them  of  the  thir- 
teenth century,  which  appears  on  the  chancery  roll  of  Bishop  Matthew 
in  1597.^° 

The  national  manuscript  records  have  yielded  some  material,  especially 
one  document  of  cardinal  importance,  the  case  of  Geoffrey  Fitz  Geoffrey, 
which  will  be  found  in  an  appendix  to  this  work.^^  It  is  not  probable  that 
the  private  manuscript  collections  of  the  United  Kingdom  contain  any- 
thing of  value  for  the  period  in  question,  although  a  good  deal  of  the 
correspondence  of  the  Bishops  in  the  sixteenth  and  seventeenth  cen- 
turies appears  in  the  reports  of  the  Historical  Manuscripts  Commission. 

1  Auditor  i,  No.  i.  2  ibid.,  No.  2.  3  ibid.,  No.  6. 

*  Ibid.,  Nos.  3,  4,  5.  5  Ibid.,  Nos.  7-40.  ^  ibid.,  5,  No.  149. 

■^  Ecclesiastical  Commissioners,  ministers'  accounts,  221 161. 

8  Ibid.,  220195.  9  Auditor  3,  Nos.  129,  133. 

1"  Rot.  Matthew,  m.  16  dorse,  No.  33,  curs.  92. 
11  Above,  App.  i. 


3J2  APPENDIX  III. 

But  these  refer  to  the  national  rather  than  to  the  palatine  government, 
and  are  state  papers,  not  local  records. 

Such  then  are  the  principal  manuscript  sources  of  the  present  study. 
Only  those  of  the  first  importance  have  been  noted ;  but,  in  the  hope  of 
lightening  the  labors  of  possible  future  students,  it  should  be  added  that 
the  writer  has  examined,  as  he  believes,  all  the  palatine  records  of  a  date 
earlier  than  1536. 

We  pass  now  to  a  very  brief  consideration  of  the  printed  sources. 
Quite  the  most  important  of  these  is  the  Registrum  Palatinum  Dunel- 
mense,  edited  for  the  Rolls  Series  by  the  late  Sir  Thomas  Duffus  Hardy.^ 
The  bulk  of  this  work  consists  of  the  register  of  Bishop  Kellaw  (131 1- 
1316),  which  is  the  official  record  of  the  spiritual  and  temporal  acts  of 
that  prelate.  The  third  volume  contains  a  miscellaneous  collection  of 
documents  relating  to  the  palatinate  before  and  during  the  pontificate 
of  Bishop  Kellaw,  together  with  the  spiritual  taxation  of  the  diocese  of 
Durham,  a  record  of  ordinations  there  from  1334  until  1345,  and  a  por- 
tion of  the  register  of  Bishop  Richard  de  Bury.  The  constitutions  of 
Bishop  Kellaw  and  a  collection  of  statutes  for  Balliol  College,  Oxford, 
are  contained  in  an  appendix.  The  fourth  volume  comprises  a  collec- 
tion of  extracts  from  the  national  records  having  reference  to  Durham, 
made  by  Hardy  in  the  course  of  a  search  for  several  missing  folios  of  the 
Registrum.  These  he  did  not  find,  but  the  loss  was  partly  supplied  by 
the  discovery  of  a  transcript  of  some  of  the  missing  portions,  which  is 
printed  in  an  appendix.  This  volume  also  contains  the  more  interesting 
parts  of  Bishop  Bury's  chancery  roll,  and  a  letter-book  or  formulary  com- 
piled for  the  use  of  that  prelate.  The  preface  supplies  some  valuable 
palaeographical  information  and  a  list  of  abbreviations.  The  value  of 
these  volumes  cannot  be  overestimated,  for  they  present  one  of  the  six 
surviving  episcopal  registers  of  Durham,^  and  afford  a  mass  of  detailed 
information  on  the  organization  of  the  palatinate  at  the  time  of  its 
highest  development. 

Next  to  the  Registrum  in  order  of  importance  come  the  Durham 
chronicles,  Boldon  Book,  and  several  invaluable  collections  of  docu- 
ments drawn  chiefly  from  the  records  of  the  dean  and  chapter  of  Dur- 
ham and  printed  by  the  Surtees  Society.  Our  knowledge  of  the  history 
of  the  see  from  its  foundation  in  635  to  the  accession  of  Bishop  Pud- 
sey,  in  1153,  rests  almost  exclusively  on  the  historical  works  ascribed 

1  4  vols.,  London,  1873-1878. 

2  The  others  are  those  of  Bury,  Hatfield,  Langley,  Fox,  and  Tunstall.  See 
Stubbs,  Registrum  Sacrum  Anglicanum  (1897) ;  p.  xvi. 


THE  RECORDS  OF  THE  PALATINATE,  333 

to  Symeon,  a  monk  of  Durham,  and  his  continuators.  These  contain 
information  supplied  by  earlier  writers,  principally  by  Beda,  and  of  the  lost 
Northumbrian  annals.  The  whole  work  is  too  well  known  to  require 
further  description  here,^  The  period  from  the  accession  of  Bishop 
Pudsey  to  the  Reformation  is  covered  by  the  works  of  three  writers  less 
generally  known  than  Symeon.  These  are  (i)  Liber  de  Statu  Ecclesiae 
Dunhelmensis,  by  Geoffrey,  a  monk  of  Durham  and  sacrist  of  the  priory 
of  Coldingham,  whose  work  extends  from  1152  to  1214;  (2)  Historia  de 
Statu  Ecclesiae  Dunhelmensis,  extending  from  121410  1336,  by  Robert 
de  Graystanes,  also  a  monk  of  Durham,  who  was  elected  Bishop  in  1333, 
but  under  royal  pressure  gave  way  to  Richard  de  Bury ;  and  (3)  Con- 
tinuatio  Historiae  Dunelmensis,  a  compilation  usually  ascribed  to  William 
de  Chambre,  of  whom,  however,  little  or  nothing  is  known.  The  work 
of  Coldingham  contains  a  good  deal  of  valuable  information,  but  has  little 
further  distinction;  that  of  Graystanes  not  only  throws  much  light  on 
difficult  constitutional  points,  but  also,  in  spite  of  the  bastard  tongue  in 
which  it  is  written,  achieves  high  literary  value.  Graystanes  was  a  spir- 
ited writer,  with  a  keen  appreciation  of  the  humorous  aspect  of  the  events 
which  he  records,  and  his  work  deserves  to  be  more  generally  known. 
The  continuation  ascribed  to  Chambre  is  scarcely  more  than  a  compila- 
tion of  historical  notes  and  affords  but  little  useful  information.  The  works 
of  these  writers  were  printed  by  Wharton  in  169 1,  but  in  a  condensed 
and  highly  incorrect  version.'^  In  1839  they  were  satisfactorily  re-edited 
by  Raine  for  the  Surtees  Society,  in  a  work  known  as  Historiae  Dunel- 
mensis Scriptores  Tres.*  Valuable  accounts  of  particular  events  in  Dur- 
ham history  are  of  course  to  be  found  in  other  chroniclers,  notably 
Florence  of  Worcester,  Matthew  Paris,  and  Walter  of  Hemingburgh. 

Boldon  Book,  the  survey  of  the  episcopal  possessions  made  by  the  order 
of  Bishop  Pudsey  in  11 83,  has  been  twice  printed,  first  by  Sir  Henry  Ellis,* 
and  later  by  the  Surtees  Society,  ably  edited  by  canon  Greenwell.^  The 
value  of  the  text  of  Boldon  Book  is  well  known  ;  but  canon  Greenwell's 
edition  includes  a  mass  of  less  available  but  highly  important  material, 
consisting  of  seven  charters  of  Bishop  Pudsey  and  one  of  his  successor, 
Philip  of  Poitou,  and  a  number  of  documents  illustrating  the  financial  his- 

1  The  Historical  Works  of  Symeon  of  Durham,  ed.  Thomas  Arnold,  Rolls 
Series,  2  vols.,  1882-1885. 

2  Anglia  Sacra,  i.  690-790. 

8  The  iniquities  of  Wharton  are  sufficiently  pilloried  in  the  preface  to  this  work, 
pp.  viii-xvi. 

*  Domesday  Book,  iv.  565-587. 
6  Boldon  Buke,  Durham,  1852. 


334  APPENDIX  III. 

tory  of  the  palatinate.  These  last  comprise  translations  of  such  parts  of 
the  pipe  rolls  of  1130,  1197, 1211,  and  1213  as  relate  to  the  bishopric  of 
Durham,  the  see  having  been  vacant  at  those  dates.  These  documents 
were  already  in  print,  but  in  a  form  not  readily  accessible ;  ^  it  is  to  be 
regretted,  however,  that  they  were  not  given  by  canon  Greenwell  in  the 
original  Latin.  Finally,  this  collection  includes  the  hitherto  inedited  pala- 
tine receipt  roll  for  the  year  1307,  "Magnus  Rotulus  Recept.  Dunelm. 
anno  Antonii  Episcopi  xxv."  ^  It  is  the  earhest  document  of  the  kind  in 
existence,  and  one  that  is  unfortunately  isolated,  for  the  regular  series  does 
not  begin  until  late  in  the  fifteenth  century.  This  is  peculiarly  valuable 
because,  with  the  exception  of  a  few  charters  and  several  fines  preserved 
by  inspeximus,  it  is  the  only  original  document  that  has  survived  from  the 
pontificate  of  Bishop  Bek. 

Another  highly  important  collection  of  documents  is  to  be  found  in 
the  appendix  to  the  Historiae  Dunelmensis  Scriptores  Tres.  Although 
called  an  appendix,  this  is  in  effect  three  quarters  of  the  work.  It  con- 
sists of  a  selection  of  the  most  interesting  and  valuable  of  the  original 
documents  and  transcripts  from  the  records  of  the  dean  and  chapter  of 
Durham,  who,  as  successors  of  the  prior  and  convent,  inherited  of  course 
the  muniments  of  that  body.  Although  much  of  this  material  illustrates 
exclusively  the  history  of  the  convent,  there  is  still  a  considerable  re- 
mainder which  throws  light  on  the  institutions  and  organization  of  the 
palatinate.  The  collection  covers  the  period  1066-15 36.  Its  editor, 
Raine,  who  was  not  disposed  to  question  too  closely  the  authenticity  of 
the  documents  which  he  printed,  admitted  the  spurious  foundation  char- 
ters of  the  convent. 

The  spuriousness  of  these  instruments  was  established  in  a  work  of 
which  we  have  now  to  speak.  This  is  the  Feodarium  Prioratus  Dunel- 
mensis, described  by  its  editor,  canon  Greenwell,  as  "  a  survey  of  the 
estates  of  the  Prior  and  Convent  of  Durham,  illustrated  by  the  original 
grants  and  other  evidences."  ^    The  feodary  itself  forms  but  a  small  part 

1  Magnus  Rotulus  Pipae  31  Henrici  I,ed.  Hunter,  Rec.  Com.,  1836;  Pipe  Rolls 
for  the  Northern  Counties  (Cumberland,  Westmoreland,  and  Durham),  published 
by  the  Society  of  Antiquaries  of  Newcastle-upon-Tyne,  Newcastle,  1847. 

2  Canon  Greenwell  dates  this  document  1307,  and  for  convenience  sake  the  date 
has  been  retained  in  this  work ;  in  point  of  fact  the  25th  year  of  Bishop  Bek  ran 
from  4  September,  1307,  until  4  September,  1308.  Some  difficulty  is  created  by  the 
fact  that  Bek  received  the  temporalities  on  September  4,  1283,  ^^^  ^"^^  ^°*  conse- 
crated until  the  following  January.  His  accession,  therefore,  appears  in  Stubbs* 
Registrum  (p.  66)  as  1284;  but  see  the  authorities  there  cited,  and  Le  Neve,  Fasti 
(ed.  Hardy),  iii.  288. 

3  Published  by  the  Surtees  Society,  Durham,  1872, 


THE  RECORDS   OF   THE  PALATINATE.  335 

of  the  work,  and  for  our  purposes  is  practically  unimportant.  The  editor 
has  added,  however,  a  series  of  original  charters  of  the  Bishops  of  Dur- 
ham and  other  persons,  which  throw  much  light  on  the  history  of  the 
palatine  officers  and  the  Bishop's  council.  Likewise  among  other  docu- 
ments printed  in  this  volume  we  find  the  curious  and  highly  important 
record  known  as  Le  Convenit,  by  which  a  modus  vivendi  was  established 
between  the  Bishop  and  the  convent;  ^  also  the  depositions  of  witnesses 
brought  by  either  side  in  the  course  of  their  long  dispute.^  These,  but 
particularly  Le  Convenit,  are  of  the  utmost  value  as  illustrating  the  de- 
velopment of  the  palatine  judiciary  in  the  early  thirteenth  century,  and 
in  general  the  growth  of  the  Bishop's  privilege  at  that  critical  period. 
Finally,  it  should  be  added  that  in  his  very  able  and  interesting  preface 
canon  Greenwell  has  demonstrated  that  the  foundation  charters  of  the 
convent  were  actually  forged  in  the  early  part  of  the  twelfth  century.^ 

These,  then,  are  the  leading  printed  sources  for  the  constitutional  his- 
tory of  the  palatinate  of  Durham.  Much  indispensable  information  has 
been  gathered  elsewhere  by  the  present  writer,  principally  of  course  in 
the  national  records  and  in  that  ample  series  of  local  records  which  the 
Surtees  Society  has  placed  at  the  disposal  of  historical  investigators.* 

It  remains  only  to  add  a  few  words  in  regard  to  the  modern  literature 
of  the  subject,  and  those  of  the  most  summary  nature.  The  history  of 
the  county  of  Durham  has  been  exhaustively  treated  by  two  writers, 
William  Hutchinson  in  the  last,  and  Robert  Surtees  in  the  present  cen- 
tury.^ The  plan  of  these  works  is  in  the  main  identical,  consisting  of  a 
relatively  brief  review  of  the  general  history  of  the  see,  in  which  each 
pontificate  is  separately  treated,  followed  by  accounts  of  every  parish  in 

1  See  above,  p.  169;  Feodarium,  212-217. 

2  These  are  entitled  "  Attestaciones  de  placitis  de  corona  in  tempore  Ricardi 
Dunelmensis  episcopi ; "  "  Attestaciones  testium  juratorum  de  capellis  de  Cor- 
nelle  et  Ankcrofte,  de  bosco  de  Heworthe,  de  curia  prions,  de  bosco  mortuo  in 
foresta,  et  de  ecclesiis  prions.  Isti  testes  fuerunt  producti  ex  parte  Ricardi  epis- 
copi, dicti  Pauper,  contra  priorem  et  capitulum  circa  annum  Domini  mccxxviii ;  " 
"  Attestaciones  testium  productorum  pro  parti  prioris  et  capituli  Dunelm.,  tempore 
Ricardi  Pauper  ante  illam  composicionem,  quae  vocatur  le  convenit,  de  privilegiis 
suis,  anno  Domini  mccxxviii  (Feodarium,  218-219,  220-261,  262-301). 

s  Feodarium,  Pref.  x-xii,  xxxi-lxxx. 

4  Many  documents  are  printed  in  the  histories  of  Durham  prepared  by  Hutch- 
inson and  Surtees,  but  the  more  important  of  these  occur  also  in  the  collections 
already  described,  where  they  are  usually  given  in  a  more  accurate  and  reliable 
form.  It  should  be  added,  however,  that  Hutchinson  furnishes  many  extracts  from 
the  palatine  chancery  rolls  not  to  be  found  elsewhere. 

^  Hutchinson,  History  of  the  County  of  Durham,  3  vols.,  Newcastle,  1785-1794; 
Surtees,  History  of  the  County  of  Durham,  4  vols.,  London,  1816-1840. 


33^  APPENDIX  III. 

the  county.  These  latter  consist  of  a  jumble  of  unrelated  facts,  from  an 
epitaph  or  a  pedigree  to  notes  on  the  local  flora,  and  they  make  very 
dreary  reading.  The  general  history  in  the  two  works  has  a  good  deal  of 
value,  and  scattered  up  and  down  these  impressive  volumes  there  is  an 
immense  amount  of  useful  information.  This,  however,  it  is  difficult  to 
come  at,  for  the  index  to  Hutchinson's  work  is  useless  and  those  in 
Surtees's  volumes  are  provokingly  incomplete.  For  the  constitutional 
side  both  these  writers  have  relied  largely  upon  several  collections  of 
historical  notes  and  extracts  prepared  in  the  last  century  by  local  anti- 
quaries who  were  famihar  with  the  Durham  records.^  For  the  purposes 
of  the  present  study  the  work  of  Hutchinson  is  on  the  whole  the  more 
useful.  He  prints,  from  the  transcripts  already  described,  Hsts  of  the 
temporal  officers  of  each  Bishop,  which  are  tolerably  accurate  and  afford 
at  least  a  valuable  clue  to  other  information.  His  general  history,  more- 
over, is  fuller  than  that  of  Surtees,  and  he  embodies  in  his  foot-notes  a 
large  number  of  valuable  documents.  Most  of  these  are  now  available 
elsewhere  and  may  be  more  safely  consulted  in  other  editions,  for  Hutch- 
inson, decHning  the  dilemma  of  extension  or  the  use  of  record  type  in 
printing  his  documents,  indicated  all  contractions  by  an  apostrophe. 
Surtees,  on  the  other  hand,  produced  a  work  that  is  far  more  readable 
than  that  of  Hutchinson,  and,  so  far  as  it  goes,  at  least  as  accurate. 

Next  in  importance  to  these  large  general  works  is  a  small  pamphlet 
compiled  toward  the  close  of  the  seventeenth  century  by  John  Spearman, 
who  was  for  many  years  under-sheriff  of  the  county  palatine.^  Spearman 
was  entirely  familiar  with  the  local  records,  and  his  work  is  rather  a 
series  of  references  to  those  sources,  topically  arranged,  than  a  con- 
tinuous essay.  It  is  well  constructed  and  of  great  value,  but  it  is  unfor- 
tunately very  rare. 

Coke,  also,  in  his  chapter  on  the  palatinate  affords  a  good  deal  of 
information,  set  forth  indeed  in  his  most  crabbed  and  chaotic  manner, 
bearing  on  the  organization  of  the  palatine  judiciary  and  its  relation  with 


1  An  account  of  these  will  be  found  in  the  prefaces  of  the  first  volumes  of  Hutch- 
inson and  Surtees  respectively.  See  also  Rud's  Catalogue  of  the  Manuscripts  in 
Durham  Cathedral,  pp.  324-437.  This  gives  the  most  valuable  account  of  the 
transcripts  in  question,  but  the  book  is  not  easily  available,  having  been  privately 
printed  at  Durham  in  1825. 

2  An  Enquiry  into  the  Ancient  and  Present  State  of  the  County  Palatine  of  Dur- 
ham, etc.,  by  John  and  Gilbert  Spearman,  Edinburgh,  1729.  Although  the  work  of 
John  Spearman  was  finished  in  1697,  it  was  first  printed  by  his  son  at  the  above 
date.  The  curious  circumstances  under  which  the  printing  took  place  are  set  forth 
above,  §  27. 


THE  RECORDS  OF  THE  PALATINATE.  33/ 

the  royal  system.  He  prints  a  quantity  of  original  material,  and  furnishes 
some  valuable  information  with  regard  to  the  organization  of  the  palatine 
chancery  in  his  day/  The  works  of  Selden,  Spelman,  Leland,  and  Cam- 
den have  been  largely  relied  upon  by  the  historians  of  the  county  ;  they 
all  contain  more  or  less  information,  but  require  to  be  used  with  caution 
and  with  constant  reference  to  their  authorities,  which  unhappily  they  do 
not  always  cite.^ 

The  Durham  manuscript  records  are  cited  (in  abbreviated  form) 
according  to  their  classification  at  the  Public  Record  Office.  Thus 
"Rot.  A.  Langley,  ann.  i,  m.  7,  curs.  34/'  refers  to  the  first  of  the 
series  of  palatine  chancery  rolls  for  the  pontificate  of  Bishop  Langley, 
classified  as  "  Durham  Cursitors'  Records,  No.  34."  The  date  of  the 
required  entry  and  its  position  on  the  roll  are  indicated  by  the  abbrevia- 
tion "ann.  i,  m.  7  "  =  anno pontificatus  i,  membrane  7.  Miscellaneous 
records  in  this  class  are  cited  thus  :  "  Cursitor  154,  No.  17  ;  "  this  indi- 
cates a  bundle  of  manuscripts  in  which  the  contents  are  numbered  con- 
secutively. The  financial  records  of  the  palatinate  are  normally  classed  as 
Durham  Auditors'  Records.  Thus  "Auditor  i,  Nos.  1-40,"  comprises  the 
sheriffs'  accounts  from  1336  to  1535.  But,  as  has  been  said,  a  number 
of  this  class  of  records  belong  to  the  Ecclesiastical  Commissioners,  who 
have  deposited  them  in  the  Record  Office.  For  the  sake  of  consistency 
and  in  order  to  facilitate  immediate  reference  to  the  original  authority, 
these,  like  all  other  manuscript  records  referred  to  in  the  present  work, 
have  been  cited  in  such  a  manner  as  to  enable  them  to  be  readily 
produced  at  the  Record  Office.  Thus  the  Durham  receiver-general's 
account  for  the  year  1461  is  cited  in  the  foot-notes  of  this  work  as  "Ec- 
clesiastical Commissioners,  ministers'  accounts,  1898 16,"  and  the  student 
(armed  with  the  necessary  permission  from  the  Ecclesiastical  Commis- 
sioners) has  only  to  write  this  reference  on  an  application  ticket  at  the 
Record  Office  to  secure  the  production  of  the  original  document. 

The  subjoined  bibliography  is  designed  only  to  facilitate  immediate 
reference  to  the  works  cited  in  the  preceding  study.  Titles  have  in 
some  cases  been  compressed,  and  only  printed  works  are  included. 

1  Coke,  Fourth  Institute,  cap.  xxxviii. 

'^  Selden,  Titles  of  Honor  (1572),  pt.  ii.  cap.  v.  §  8;  Spelman,  Glossarium  Archai- 
ologicum  (1637),  s.  V.  "Comes"  and  "  De  Comite  Palatino;"  Camden,  Britan- 
nia (ed.  Gibson,  1722),  ii.  931-962 ;  Leland,  De  Rebus  Brittanicis  Collectanea 
(ed.  Hearne,  1770). 


22 


APPENDIX   IV. 
LIST   OF  WORKS   CITED. 

[Abbreviations  used  in  the  foot-notes  of  the  text  are  indicated  below  by  square  brackets.] 

[Abbrev.  Plac]    Abbreviatio  placitorum.     Rec.  Com.     [London],  1811. 
AiLREDUS  RiEVALLENSis.      Historia    de  bello   standard!.      In  Twysden, 

Scriptores  Decern,  i.  338-346.     London,  1652. 
Anecdota  Oxoniensia.     Medieval  and  modern  series.     Pt.  vii.     Oxford, 

1895. 
Anglia  Sacra.     Edited  by  Henry  Wharton.    2  pts.    London,  1691. 
Anglo-Saxon   Chronicle  (The).     Edited  by  Benjamin  Thorpe.    Rolls 

Series.     2  vols.     London,  1861. 
Annales  Monasticl    Edited  by  H.  R.  Luard.    Rolls  Series.    5  vols.    Lon- 
don, I 864-1 869. 
Arbois  de  Jubainville,  Henri  d'.     Histoire  des  dues  et  des  comtes  de 

Champagne.     7  vols.     Paris  and  Troyes.     1859-1869. 
Ashley,  W.  J.     English  economic  history.     3d  edition.     Vol.  i.     London, 

1894. 
Bacon,  Nathaniel.     Historical  discourse  of  the  government  of  England. 

London,  1647. 
Banks,  Sir  T.  C.     Baronia  Anglica  concentrata.     2  pts.     Ripon,  1844. 
Bean,  W.  W.     Parliamentary  representation  of  the  six  northern  counties  of 

England.     Hull,  1890. 
[Benedictus  Abbas.]     Benedict  of  Peterborough.     Gesta  regis  Henrici 

secundi.     Edited  by  William  Stubbs.     Rolls  Series.     2  vols.     London, 

1867. 
Blackstone,    Sir   William.     Commentaries.     Edited  by  R.    M.  Kerr. 

4  vols.     London,  1857. 
[BoLDON  Book.]    Boldon  buke.     Edited  by  William  Greenwell.     Surtees 

Society.     Durham,  etc.,  1852. 
Bosworth,  Joseph.     Anglo-Saxon  dictionary.     Edited  by  T.    N.   Toller. 

Oxford,  1 882-1 898. 
BouviER,  John.     Law  dictionary.     2  vols.     Philadelphia,  1839. 
Boyle,  J.  R.     The  county  of  Durham.     London,  1892. 
Bracton,  Henry  de.     De  legibus  Angliae.    Edited  by  Sir  Travers  Twiss. 

Rolls  Series.     6  vols.     London,  1 878-1 883. 

Bracton's  note  book.     Edited  by  F.  W.  Maitland.     3  vols.     London, 

1887. 
Brady,  Robert.     Introduction  to  the  old  English  history.     London,  1684. 


LIST  OF  WORKS  CITED,  339 

Brinkburne  Chartulary  (The).  Edited  by  William  Page.  Surtees 
Society.     Durham,  etc.,  1893. 

Brockett,  W.  E.  Glossary  of  north  country  words.  2  vols.  Newcastle, 
1846. 

Brooke,  Sir  Robert.     La  graunde  abridgment.     2  pts.     London,  1573. 

Brunner,  Heinrich.  Deutsche  Rechtsgeschichte.  2  vols.  Leipzig, 
1 887-1 892. 

Brussel,  Nicolas.  L'usage  gdndral  des  fiefs  en  France.  2  vols.  Paris, 
1727. 

Calendar  of  the  close  rolls,  a.  d.  i  307-1 333.  Rolls  Series.  6  vols.  Lon- 
don, 1 892- 1 898. 

Calendar  of  letters  and  papers  of  the  reign  of  Henry  VI I L  Rolls  Series. 
Vols,  i-xii.     London,  1 862-1 891. 

Calendar  of  papal  registers.  Edited  by  W.  H.  Bliss.  Rolls  Series. 
3  vols.     London,  1 893-1 897. 

Calendar  of  the  patent  rolls,  A.  D.  1 281-1467.  Rolls  Series.  12  vols. 
London,  1891-1898. 

[Cal.  rot.  pat.]  Calendarium  rotulorum  patentium.  Rec.  Com.  [Lon- 
don], 1802. 

Calendar  of  state  papers.  Domestic  series,  a.  d.  1595-1597,  1635,  1635- 
1636,  1 638-1 639.     Rolls  Series.     London,  1 869-1 871. 

Camden,  William.  Britannia.  Edited  by  Edmund  Gibson.  2  vols. 
London,  1722. 

Chronicles  of  the  reigns  of  Edward  I  and  Edward  IL  Edited  by  William 
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344  APPENDIX  IV. 

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Roll  (The)  of  Caerlaverock.    Edited  by  Thomas  Wright.    London,  1864. 
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Seebohm,  Frederic.     The  English  village  community.     London,  1883. 

Selden,  John.     Titles  of  honor.     London,  1572. 

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INDEX. 


Aachen,  nucleus  of  a  new  state  created 
by  Otto  I  for  the  comes  palatinus  of 
Lorraine,  6. 

Aberdeen,  merchants  of,  seek  recovery  of 
a  ship's  cargo  cast  ashore  at  South 
Shields,  245-246,  322-323. 

Abjuration  of  the  realm,  procedure  con- 
nected with,  in  the  palatinate,  84,  253- 

254- 
Accounts  of  the  palatinate,  audit  of,  152, 
267-269. 
construction  of,  269-270:  see  Records 
of  the  palatinate. 
Act  of  resumption  of  1536,  196-198. 
Actions,  created  by  statute  lay  as  of  course 
in  the  courts  of  the  palatinate,  125,  256- 

257. 
Admiral  of  England,  authority  of,  in  the 
palatinate,  311. 
excludedfromprivilegedseaports,325. 
judicial  visitations  by,  320. 
Admiralty,  court  of,  in  the  palatinate,  193- 
194,  317-326. 
in  the  kingdom,  3 17. 
Admiralty  judge,  appointment  of,  by  the 
Bishop,  324. 
by  the  crown,  317,  323. 
Admiralty   jurisdiction,    of    the    Bishop, 
193-194,  317-326. 
in  other  franchises,  325-326. 
in  the  kingdom,  317,  323. 
Advowsons,  215,  217,  243-244. 
Aechardus,  138. 

Aidan,  Bishop  of  Lindisfarne,  15. 
Aisshe,  Roger  de,  justice  of  gaol-delivery, 

in  the  palatinate,  69. 
Albemarle,  earl  of,  319. 
Aldwin,  a  monk  of  Evesham,  137. 
Alexander  III,  king  of  Scotland,  38-39. 
Alexander  III,  pope,  272  note  i. 
Alfred,  king,  grants  land  to  the  see  of 
Lindisfarne,  13, 15, 158. 
notthe  founderof  the  palatinate,  12, 16. 


Alfred,  statue  of,  in  Durham  cathedral,  16. 
Algar,  prior  of  Durham,  55  note  2. 
Alnwick  Castle,  sale  of,  by  Bishop  Bek, 

131  note  I. 
Alvertonshire,  an  estate  of  the  Bishop  in 

York,  152  note  2. 
Ambassadors,    received  by  Bishop  Kel- 

law,  40  note  4. 
Amortization  of  land  :  see  Mortmain. 
Amundaville,  John  de,  138. 

Robert  de,  138. 
Ancle,  Geoffrey  de,  attorney  of  the  Bishop 

(1208),  313. 
Andrei,  Rogerus  de,  miles,  318. 
Ankcrofte,  chapel  of,  335  note  2. 
Appeal,  from  the  decisions  of  the  chan- 
cery of  Durham,  forbidden  to  be  taken 
to  the  house  of  lords  (1889),  207. 
Approvers,  pardoned  by  the  Bishop,  68. 
Aquitaine,  admiral  of,  311. 
Army,  the  king's,  sent  to  the  palatinate  to 

recruit  (1315),  304-305:  j-^f^?  Troops. 
Arrest,  as  between  the  palatinate  and  the 

geldable,  216-231. 
Ascough,  justice,  opinion  of,  regarding 

counties  palatine,  238. 
Assembly  of  the  palatinate,  assent  of,  to 
national  taxation,  1 18. 
compared  with  the  Manxe  Tynwald, 

112. 
composition   and  functions  of,   114- 

136. 
control  of  the  Bishop  by,  127-136. 
development  of,  106-114. 
first  tidings  of,  107. 
fiscal  functions  of,  1 16-124,  273. 
legislative  functions  of,  124-127. 
organization  of,  115. 
procedure  in,  116. 
relation  of,  to  the  shire-moot,  iii- 

115,  124. 
taxed  itself  on  its  own  initiative,  120- 
124. 


348 


INDEX, 


Assembly  of  the  palatinate,  theories  of 
early  writers  regarding,  io6:  see  Bones 
gentz  de  la  fraunchise,  Commonalty, 
Communitas,  Community,  Illi  de  episco- 
paiu,  People,  Populus. 

Assize,  grand,  could  not  be  had  in  the 
court  of  the  bishopric  in  the  early  thir- 
teenth century,  72,  164,  166,  313-316. 

Assize,  justices  of,  in  the  palatinate,  174. 

Assize  of  arms,  302. 

Assize  of  beer,  84. 

Assize  of  bread,  84. 

Assize  of  Clarendon,  executed  in  the  bish- 
opric with  the  Bishop's  leave  and 
without  creating  a  precedent,  126,  163, 
166,  226,  296,  302. 

Assize  of  measures,  84. 

Assizes,  court  of,  in  the  palatinate,  195. 

Assizes,  exemptions  from  serving  on, 
granted  by  the  Bishop,  71. 

**  Assizes  of  the  kingdom,"  167,  316. 

Athelstan,  elected  king  of  Northumbria, 
16. 

Attachment,  writ  of,  211. 

Attestaciones  testium,  210. 

Attorney-general,  of  the  Bishop,  179-180. 

Attorneys,  foreign,  not  allowed  to  practise 
in  the  palatine  courts  (1729),  202  note  5. 

Audit,  of  the  palatine  accounts,  152,  267- 
269. 

Auditors'  records,  330-331. 

Bacun,  Robert,  councillor  of  Bishop 
Pudsey,  139. 

Bailiffs,  of  the  wards  of  the  palatinate,  85 
note  6. 

Baker,  Margaret,  laborer,  242-243. 

Baldwin,  count  of  Flanders,  6-7,  9. 

Balliol,  family  of,  30,  165. 

Balliol,  Bernard,  at  the  battle  of  the 
Standard,  302  note  2. 

Balliol,  Edward,  in  charge  of  the  war  in 
Scotland  (1341),  306. 

Balliol,  John  de,  sued  by  the  abbot  of  S. 
Mary's  York  (1243),  165. 
witnesses  a  charter  of  Bishop  Kirk- 
ham  (1259),  139. 

Balliol,  John  de,  king  of  Scotland,  for- 
feited estates  of,  in  the  palatinate,  42- 
46,  247  note  I. 

Balliol  College,  Oxford,  332. 

Bamburgh,  house  of,  earldom  of  North- 
umberland held  by,  17. 


Barnard  Castle,  assembly  of  armed  men 
at  (1427),  242. 
constable  of,  44. 

did  not  belong  to  the  Bishop,  91  note  4. 
forfeited  to  the  Bishop  by  John  de 

Balliol  (1296),  42,  46. 
granted  by  the  king  to  Guy  de  Beau- 
champ,  earl  of  Warwick,  43. 
liberty  of,  121. 
official   residence   of    the  lieutenant 

and  council  of  the  marches,  260. 
seigneury  of,  44. 
Barnard  Castle,  Richard  de,   chancellor 

of  the  palatinate,  187  note  3. 
Barnes,     Richard,    Bishop    of   Durham, 

198. 
Baronage,  of  the  palatinate,  share  of,  in 
procuring   a   charter  of  liberties  from 
Bishop  Bek,  129. 
Baronies,  of  the  bishopric,  63-67. 
Barons,  of  the  bishopric,  assembled  as  a 
court,  108-109. 
mentioned  in  the  pipe  roll  of  1197, 

66. 
pay  scutage  to  the  king  during  va- 
cancy of  the  see  (1196),  286. 
presence  of,  in   the   Durham  shire- 
moot,  no. 
truce  arranged  by,  64. 
Barton,  John,  payment  to  (1461),  269. 
Basset,  Alicia  de,  case  of,  172  note  5. 
Basset  (Mr.),  destroys  records  of  the  pa- 
latinate, 327-328. 
Bath    and   Wells,   bishop   of,    admiralty 

jurisdiction  of,  325-326. 
Baudre,   John,  keeper    of   the    Bishop's 

forests,  60  note  4. 
Beam,  cour  majour  of,  144  note  2. 
Beauchamp,  Guy  de,  earl   of   Warwick, 
obtains  Barnard  Castle  from  the  king, 

43- 
Beaumont,  Louis  de.  Bishop  of  Durham, 
character  of,  1 54-1 55- 

circumstances  of  his  election,  305- 
306. 

obtains  from  parliament  recognition 
of  his  right  to  have  forfeitures  of 
war  in  the  palatinate,  44. 

papal  bulls  obtained  by,  154. 

relation  of,  to  his  council,  154. 

reproached  by  the  king  with  his  fail- 
ure to  defend  the  borders,  305- 
306. 


INDEX. 


349 


Beaurepaire,  country  seat  of  the  prior  and 

convent  of  Durham,  122. 
Bee,  John,  suits    brought    against,    172 

note  5. 
Beda,  158,  -j^t^i- 

Bedlingtonshire,   admiralty    case  arising 
at,  323. 
commission  of  the  Bishop  to  collect 

money  at,  152  note  2. 
coroner  of,  86. 

parcel  of  the  bishopric  of   Durham 
although  lying  in  Northumberland, 
20,  157  note  I. 
royal  inquests  taken  at,  241. 
Bek,  Anthony,   Bishop   of    Durham,   at- 
tempts  to  extend  the  jurisdiction 
of  his  spiritual  courts,  192. 
besieges   Dirlton  Castle  (1298),  129 

note  2,  303. 
character  of,  130  note  2,  131  note  i, 

293- 
coins  of,  280. 

dates  of  his  accession  and  consecra- 
tion, 334  note  2. 
development  of  palatine  sovereignty 

by,  42. 
documents  surviving  from  pontificate 

of,  334. 
drops  the  practice  of  petitioning  for 

pleas  of  the  crown,  173. 
lord   or  king  of  the   Isle    of   Man, 

131  note  I,  293. 
love  of  war,  303. 
made  no  effort  to  assert  his   right 

to  have  forfeitures  of  war  in  the 

palatinate,  44. 
patriarch  of  Jerusalem,  131  note  i. 
relations  of,   to   the    archbishop   of 

York,  53 :  see  York,  archbishop  of. 
relation  of,  to  the  king,  42,  129-130, 

247  note  I,  303-304. 
relation  of,  to  the  prior  and  convent 

of  Durham,  51-52,  88,  140-141,  153, 

230,  236,  247  note  I. 
relation  of,  to  his  subjects,  128-134. 
retinue   of   knights    maintained    by, 

99-100. 
revenue  of,  293. 
sells  Alnwick  Castle  which  he  held 

in  trust,  131  note  i. 
taxed  the  clergy  of  his  diocese,  274. 
wealth  and  splendor  of,  99-100,  131, 

134,  210,  293  note  4. 


Bentley,  John,  councillor  of  the  Bishop 

(1524,  1528),  148. 
Beriebrig,  indenture  made  at,  229  note  i. 
Berrington,  manor   of,  in   Norhamshire, 

43- 
Bertram,  prior  of  Durham,  62  note  i. 
Berwick-on-Tweed,  275-276,  301,  307. 
Bigod,  Sir  Francis,  asks   Cromwell   for 
the  release  of  sanctuary  men  who  had 
been  arrested  at  Durham  (1536),  255. 
Billingham,  port  dues  levied  by  the  Bishop 
at,  320. 
right  of  the  prior  to  have  a  ferry  at, 
320. 
Billy,  John  de,  coroner  of  the  Darlington 

ward  (1383),  87  note  4. 
Bishop's  Aukland,  ambassadors  received 
at,  by  Bishop  Kellaw   (13 13),  40 
note  4. 
murder  of  John  de  Eure  at  (1322), 
214. 
Blaykestone,  William  de,  appointed  sheriff 

of  Durham  (1344),  81-82. 
Blois-Champagne,  house  of,  uses  the  title 

q{  comes  palatinus,  7. 
Boldon,  parson  of,  case  of,  183. 
Boldon  Book,  149,  332,  333-334. 
Bolton,  Peter  de,  execution  on  property 

of,  in  the  palatinate,  248. 
Boner,  John,  coroner  of  the  Easington 

ward  (1383),  %-]  note  i. 
Bones  gentz   de   la  fratmchise,    115:    see 
Assembly,    Commonalty,    Communitas, 
Community,  ////  de  episcopatu,  People, 
Populus. 
Booth,    Laurence,    Bishop    of    Durham, 
chancellor  of  England,  265  note  3. 
coinage  of,  281. 
deprived  and  reinstated  by  Edward 

IV,  46. 
reminded  by  the  king  of  his  obliga- 
tion to  enforce  a  certain  statute  in 
the  palatinate  (1466),  228. 
Booty,    taken    on    the    borders    by    the 

Bishop's  troops,  40. 
Borders  :  see  Scotland,  borders  of. 
Borderum,   an  estate  in    the    bishopric, 

313-314,316. 
Boroughs,  of  the  palatinate,  creation  of, 

35- 
farm  of,    a   source  of  the    Bishop's 

revenue,  36,  277. 
tallage  of  (1197),  292. 


350 


INDEX. 


Boroughs,  of  the  palatinate,  took  no  part 

in   obtaining   the    charter  of    liberties 

from  Bishop  Bek,  133-134- 
Bowes,  Adam  de,  sheriff  of  Durham  (131 2), 

82  note  I. 
Bowes,  Sir  Rauff,  sheriff  of  Durham  (1495) 

229  note  I. 
Bowes,  Robert,  councillor  of  the  Bishop 

(1528),  148. 
Bowis,  Robert,  signature  of,  262  note  2. 
Bracton,  Henry  de,  comites  paleys  men- 
tioned by,  10. 
doctrine  of,  relative  to  minor  regali- 
ties, 61. 
process   against   lords  of  franchises 

described  by,  219. 
voucher  to  warranty  between  a  fran- 
chise and  the  geldable   described 
by,  232. 
Bradbery,  Emma  de,  accidentally  killed 

by  her  father  (1344),  88. 
Bradbery,     Reginald     de,    pardoned    by 

the  Bishop  for  accidentally  killing  his 

daughter  (i344)>  88. 
Bradbery,  vill  of,  88. 
Brakenbury,    Robert     de,    one     of    the 

Bishop's  commissioners  for  the  collec- 
tion of  a  tax  (1348),  120  note  i. 
Brakenbury,   William   de,  keeper  of  the 

Bishop's  forests,  60  note  4. 
Brancepeth,  Bulmer  of  :  see  Bulmer. 

church  of,  records  relating  to,  328. 
Brandun,    Reginald     de,    councillor    of 

Bishop  Bek,  141. 
Bref  a  levesque,  191. 
Brenba,  Odo  de,  witnesses  a  charter  of 

Bishop  Geoffrey,  138. 
Breton,  J.,  coroner  of  Bishop  Bek,  88. 
Brompton,   Robert    de,   chancellor    and 

receiver-general  of  the  palatinate,  267. 
Brompton,  William  de,  major  justiciarius 

of  the  palatinate,  177  note  2. 
Brooke,    Robert,    comment    of,    on    an 

opinion  of  justice  Newton,  238. 
Bruce,  family  of,  30. 
Bruce,    Robert,   at    the    battle    of    the 

Standard,  302  note  2, 
Bruce,   Robert,   king   of    Scotland,    for- 
feited estates  of,  in  the  palatinate,  42- 

46,  247  note  I. 
Bruges,  merchants  of,  322. 
Bruges,  town  of,  40,  322. 
Brunnynghille,    John     de,    one    of    the 


Bishop's  commissioners  for  the  collec- 
tion of  a  tax  (1348),  120  note  i. 
Brus,  Peter  de,  claims  right  of  wreck  at 

Hartlepool,  319. 
Brytley,  John,  coroner  of    the    Chester 

ward,  90. 
Buckingham,  duke  of,  admiral  of  Eng- 
land (1619),  323. 
Buckton,  manor  of,  in  Islandshire,  43. 
Bullok,  R.,  magister  eqiwrum  episcopi,  102. 
Bulls,  papal,   obtained  by  Bishop  Beau- 
mont, 154. 
Bulmer  of  Brancepeth,  a  baronial  family 

of  the  bishopric,  64-67,  138. 
Bulmer,  Bertram  de,  64-65,  113  note  i. 
Bulmer,  Sir  John,  attainder  of,  47. 
Bulmer,  Sir  William,  sheriff  of  Durham 
and  a  member  of  the  council  of  the 
marches,  253,  260. 
Bury,    Richard   de.   Bishop   of   Durham, 
chancellor  of  England,  265  note  3. 
chancery  roll  of,  329,  332. 
circumstances  of  his  election,  333. 
claims    right  to  enforce  assumption 
of  knighthood  in   the   palatinate, 
287-288. 
commissions    issued  by,  81,  82,  83, 

119,  125,321. 
council   of,  145-146. 
forbids  his  justices  to  let  an  action 
go  by  default  the  tenant  being  ab- 
sent on  the  Bishop's  service,  71. 
letter-book  of,  108,  1 14  note  2,  332. 
mortmain  license  issued  by,  73. 
obtains  a  grant  of  wool  from  his  sub- 
jects for  the  king,  298. 
outlaws  the  king's  commissioners,  321. 
purchases   armistice  with  the  Scots, 

39- 
receives  a  money  grant  from  his  sub- 
jects, 119. 
register  of,  332. 

rights  of,  on  the  river  Tyne,  320-321. 
Butchers,  of  the  palatinate,  136. 
Bye-laws,  may  have  been  issued  by  the 

assembly,  126-127. 
Bynchestre,  John,  seeks  remedy  against 

the  Bishop  in  chancery  (1463),  188. 
Byrd,  Johanna,  party  to  an  action  in  the 

consistory  court  of  Durham,  192. 
Byrd,  John,  will  of,  192. 
Byrd,  William,  party  to  an  action  in  the 
consistory  court  of  Durham,  192. 


INDEX. 


351 


Byrkeknott,  forge  of  the  Bishop  at,  284 
note  6. 

Calais,  legal  position  of,  258. 
Calne,  Robert  de,  chancellor,  constable, 
and  receiver-general  of  the  palatinate, 

95- 
Calverly,    Thomas,    chancellor    of    the 

palatinate,  198. 

Cambium,  at  Durham,  279. 

Camden,  William,  106,  337. 

Camera,  Robert  de,  probably  the  cham- 
berlain of  Bishop  Skirlaw,  loi  note  4. 

Camerarii,  138,  139:  see  Chamberlain. 

Canterbury,  city  of,  royal  mint  at,  278, 
281. 

Canterbury,  see  of,  gross  income  of 
(1835),  294. 

Capacities,  doctrine  of,  applied  to  the 
Bishop  of  Durham,  191,  217  note  i : 
see  Status. 

Capias  utlagatum,  writ  of,  252. 

Capitalis  pincerna,  at  Hartlepool,  103,  276. 

Capitalis  senescallus :  see  High  steward. 

Carlisle,  castle  of,  thieves  imprisoned  at, 

253- 

Carlisle,  city  of,  rising  at  (1537),  261. 

"  Carriage,"  might  not  be  levied  in  the 
palatinate  without  the  consent  of  the 
commonalty,  132. 

Carrowe,  John  de,  appropriates  a  whale 
cast  ashore  on  his  demesne,  150. 

Carta  pads,  70. 

Carucage,  not  paid  by  the  bishopric  in 
1 197  when  the  see  was  vacant,  295-296. 

Castellans  :  see  Durham,  castle  of. 

Cave,  Robert  de,  chancellor  of  the  palat- 
inate, 95  note  5. 

Cecil,  William,  lord  Burghley,  294  note 

3.  309- 

Ceolwulf,  king  of  Northumbria,  grants 
of,  to  Bishop  Ethelwold,  1 5. 

Certiorari,  writ  of,  24. 

Chamberlain,  of  the  Bishop,  93,  loi. 

Chambre,  William  de,  history  of  Dur- 
ham attributed  to,  333. 

Champagne,  counts  of,  styled  themselves 
comites  palatini,  7-8. 
Grands  Jours  de,  8. 

Chancel er,  Ricardus  le,  chancellor  of 
Bishop  Stichill,  95  note  5. 

Chancellor,  of  the  Bishop's  household,  100. 

Chancellor,    of    the    palatinate,    93-99. 


Chancellor  of  the  palatinate,  administra- 
tive duties  of,  97. 
appointed    by   the    king  during  va- 
cancies of  the  see,  95-96. 
commonly  held  the  offices   of   con- 
stable and  receiver-general,  97. 
earliest  mention  of,  94-95. 
equitable  jurisdiction  of,  188-189. 
fiscal  duties  of,    97-98,   291. 
Hutchinson's  theory  regarding,  94-95. 
judicial  duties  of,  96-97,  182. 
jurisdiction  of,  in  the  council,  186-187. 
justice  of  peace  for  Durham  ex  officio 

after  1536,  197. 
medium  through  which  the  temporal 
arm  was  placed  at  the  disposal  of 
the  church,  96. 
salary  of,  180,  207. 

seals  of,  generally  committed  to  the 

constable  when  the  chancellorship 

was  vacant,  98-99. 

secretary  of  state  for  all  departments, 

96. 

Chancellor  of  the  see  of  Durham,  99 

note  2. 
Chancellor,  William,  chancellor  and  con- 
stable of    the  palatinate    (1422),    190 
note  3. 
Chancellor,   William,   constable    of   the 

palatinate  (1336),  270. 
Chancellor,    William,   constable    of    the 

palatinate  (1375),  98. 
Chancellor      (or    Chanceller),     William, 
probably  spiritual   chancellor  of  Dur- 
ham (1434),  99  note  2. 
Chancery  of  the  palatinate,  186-190. 
admiralty  cases  heard  in,  322-323. 
building  constructed  for,  271. 
confusion  of,  with  the  exchequer,  190, 

270-271. 
early  development  of,  95. 
escaped  operation  of  the  act  of  1 536, 

198. 
fiscal  functions  of,  189,  270-271,  291. 
held  in  the  hall  of  Durham  Castle,  271. 
history  of,  in   the  present  century, 

203-205,  207-208. 
pleas  in  (1360),  187. 
prohibits    the    consistory    court    of 

Durham  192. 
records  of,  189,  327  note  i,  329-330. 
relations  of,  to  the  Bishop's  council, 
186. 


352 


INDEX, 


Chancery  of  the  palatinate,  remedy  against 
the  Bishop  sought  in,  i88. 
reorganizations  of,  189,  207. 
secretarial  department  of  the   pala- 
tine government,  186. 
sessions   of,   held    but  once  a  year 

(1729),  202. 
subject  to  royal  control  in  the  six- 
teenth century,  198. 
writs  issued  by,  203. 
Charcoal-burners,  104  note  i. 
Charles  II,  king  of  England,  200,  325. 
Charron,  Guiscard  de,  case  of,  248  note  i. 
justice  itinerant  and  steward  of  the 
palatinate  and    councillor   of   the 
Bishop,  79  note  6,  140,  176. 
saves  the  life  of  the  archbishop  of 
York,  140  note  7. 
Charter  of  liberties,  obtained  from  Bishop 

Bek  (1303),  131-134- 
Charters,  Anglo-Saxon,  relating  to    the 
bishopric,  13,  16,  329. 
Edward  I's  redaction  of  the,  entered 

in  Bishop  Kellaw's  Register,  125. 
municipal,  granted   by  the    Bishop, 

35- 
of  foundation  forged  by  the  convent 

of  Durham,  160-161,  335. 
of  the  Bishops  of  Durham,  335. 
Chester,  county  palatine  of,  actions   re- 
moved to,  235,  240. 
chamberlain  and  vice-chamberlain  of, 

228  note  4. 
corresponds  to  the  French  fief,  i. 
county  court  of,  113  note  2. 
distinguished  from  the  franchise  of 

Wales,  234,  258. 
divided  among  co-heirs,  lo-ii. 
foundation  of,  12. 
obligations  made  in,  236. 
outlawry  in,  221. 
paid  scutage  to  the  king,  285. 
population  of  (1377),  116  note  i. 
privileges  of,  held  by  prescription, 

258. 
raids  into  neighboring  counties  by 

the  men  of,  227. 
recovery  in  banco  of  lands  in,  is  void, 

243- 
release  made  in,  237  note  2. 
united  to  the  crown,  196. 
voucher   to   warranty   between,   and 

the  geldable,  233. 


Chester,  earl  of,  accounts  for   half  the 
scutage  of  Richmond   (1208),  285 
note  3. 
liberties  of,  compared  to  those  of  the 
Bishop    of    Durham,    lo-ii,    182 
note  2. 
remedy  against,  182  note  2. 
sword  carried  by,  at  the  coronation 

of  Henry  III,  10. 
theory  of  his  power  to  coerce  the 
king,  10. 
Chester,  Ranulf,  earl  of,  182  note  2. 
Chester-le-Street,    collegiate   church   of, 

224. 
Chester  ward,  of  the  bishopric,  coroner 

of,  87  note  I,  90. 
Chief  justice,  of  the  palatinate,  177-178. 
Christian,    a  moneyer    of    Durham,    58 

note  4. 
Chronicles,  of  Durham,  332-333. 
Church  Inquiry  Commission,  204-205. 
Clare,  Thomas  de,  manor  of  Greatham 

granted  to,  42. 
Clargenet,  Marmaduke,  327  note  i. 
Claxton,  Ralph,  suit  of,  met  with  wager 

of  battle  (1636),  263  note  2. 
Clerc,  John,  pardoned  for  theft  by  Bishop 

Fordham,  293-294. 
Clergy  of  Durham,  grants  made  by,  to 
the  Bishop,  274. 
relation  of,  to  the  Bishop  as  temporal 

lord,  50-53. 
summons  of,  in  the  national  courts, 
223-224. 
Clerk,  of  the  chancery  of  the  palatinate, 
270  note  2. 
of  the  exchequer,  270. 
of  the  great  roll,  270  note  2. 
of  the  market,  194. 
Clerk,    Robert  le,   prebendary  of    Lan- 

chester,  224. 
Clibert,   pays   for  the  duel  of  his  men 

(1 130),  290. 
Clifford,  Robert  de,  manors  of  Hart  and 

Hartnesse  granted  to,  43. 
Coal,  mined  in  the  palatinate,  58,  284- 

285. 
Cocket,  seal  of,  275. 
Coinage,  of  the  palatinate,  58,  280-281 : 

see  Mint. 
Coinneriis,   Rogerus    de :    see    Conyers, 

Roger  de. 
Coke,  Sir  Edward,  300  note  i,  336-337. 


INDEX. 


353 


Coldingham,     Geoffrey    de,     history    of 

Durham  by,  333. 
Comes  palatinus,  office  of,  at  the  Merovin- 
gian and  Karolingian  courts,  4-5. 
Comes  palatinns,  title  of,  in  France,  Ger« 
many,  and  Italy,  5-8. 
not  used  by  the  Anglo-Saxons,  3. 
origin  and  meaning  of,  3-5. 
transmission  to  England  of,  8-1 1. 
Commissions   of    array,  use  of,    in   the 

palatinate,  306. 
Commissions  of  justices  in  the  palatinate, 

174,  178-179- 
Commonalty  of  the    bishopric,    accorde 
made  by,  with  the  king  of  Scotland 
(1312),  39- 
compounds  for  the  settlement  of  debts 

to  the  king,  123. 
fines  with  the  Bishop  to  escape  a 

general  eyre,  135-136. 
fines  with  the  king  to  escape  a  gen- 
eral eyre,  121,  123-124. 
grants  a  tax  to  Bishop  Bury,  272. 
letters  addressed  to,  131,  135. 
petitions  the  king  for  livery  of  the 
charter  of  liberties  obtained  from 
Bishop  Bek,  134. 
purchases  truces  with  the  Scots,  121- 
122:  see  Assembly,  Bones  gentz  de 
la  fraunchise^    Communitas,   Com- 
munity, ////  de  episcopate.  People, 
PopuJus. 
Common  pleas,  court  of,  prohibits  pala- 
tine admiralty  court,  325. 
Communitas  of  the  bishopric,  articles    of 
their  demands  against  the  Bishop 
(1302),  130,  131. 
charter  granted  to,  by  the  king,  120- 

I2T,  131-134. 
complaint  of,  to  the  king  (1302),  72. 
consent  of,  necessary  for  levying  con- 
tributions in  the  palatinate,  1 18. 
grants  a  tax  to  Bishop  Bury,  119. 
identified  with  the  assembly,  115. 
independent  corporate   action  of,  in 

the  thirteenth  century,  113-114. 
negotiates  with  the  Bishop  for  a  char- 
ter of  liberties  (1302),  1 30-1 3 1  :  see 
Assembly,  Bones  gentz  de  la  fraiin- 
chise,  Commonalty,  Community,  lilt 
de  episcopatUy  People,  Populus. 
Community  of  the  bishopric,  complaint 
of,  to  the  king,  192. 


Community  of  the  bishopric,  grants  a  tax 
to  Bishop  Hatfield,  97. 
parliamentary  representation  not  ob- 
tained by,  until  the  Stuart  restora- 
tion, 124 :  see  Assembly,  Bones  gentz 
de  la  fraunchise,  Common2i\X.y,  Com- 
munitas^ Illi  de  episcopatu.  People, 
Populus. 
Companies,  industrial :  see  Corporations* 
Comperta,   of   the  convent   of    Durham* 

54- 
Competence,  of  the  courts  of  the  bishop- 
ric :  see  Court  of  the  bishopric. 
Compurgation,  99  note  2. 
Concilium   intimum:  see  Council   of  the 

Bishop. 
Concilium     regis,     compared     with     the 

Bishop's  council,  141-143. 
Confirmation   of  the   charters,  personal 
responsibility  of   Bishop  Bek  for,  130 
note  2. 
Conservatores  pads  in  the  palatinate,  ap- 
pointed by  the  king  during  vacancy  of 
the  see,  178 :  see  Peace. 
Consistory  courtj  of  the  palatinate,  action 

in  {1463),  192. 
Constable,  of  Durham  Castle,  89,  91. 
Constable  of  the  palatinate,  88-91. 

commonly  held  the  offices  of  chancel- 
lor and  receiver-general,  89,  90. 
confusion  in  the  use  of  the  term,  88- 

89,  98-99. 
contrasted  with  the  constable  of  Eng- 
land, 90. 
financial  duties  of,  90-91. 
military  duties  of,  90. 
office    of,    probably    feudalized    for 
some  time  after  the  Norman  Con- 
quest, 89-90. 
probably  had  custody  of  the  seals 
when  the   chancellorship   was  va- 
cant, 98-99. 
Contempt  of  court  in  the  palatinate,  185. 
Contract  in  the  palatinate,  97,  185:  see 
Recognizances,  Statute  merchant.  Stat- 
ute staple. 
Convenit,  le,  document  defining  the  rela- 
tions of  the  Bishop's  and  prior's  courts 
(1229),  150-151,  169,  172,  210,  268  note 
6,  320,  335- 
Conyers  of  Sockburne,  a  baronial  family 

of  the  bishopric,  64-66,  89-90,  138. 
Conyers,  Robert,  recognizance  of,  185. 


^3 


S54 


INDEX. 


Conyers,  Roger  de,  63-64,  89,  113  note  i, 

138. 
Conyers,  William,  bailiff  of  the  franchise 

of  Richmond,  229  note  i. 
Copsi,  earl  of  Northumberland,  17. 
Corbyn,  John  de,  killed  at  Durham,  58 

note  4. 
Cornage,  288-289. 
Cornelle,  chapel  of,  335  note  2. 
Cornwall,  county  of,  295,  326. 
Coroners  of  the  palatinate,  86-88. 
accounts  of,  88,  271. 
appointment  of,  86-87. 
deputies  of,  87. 
duties  of,  87-88. 
fees  of,  87. 
first  mention  of,  86. 
four  chief,  might  be  mounted,  133. 
oath  of,  on  taking  office,  87. 
oaths  of  those  abjuring  the  realm 

taken  before,  253. 
oppressions  of,  87,  88. 
rod  carried  by,  88. 
Corporations,  created  and  regulated  by 

the  Bishop,  35-36. 
Cosin,  John,  Bishop  of  Durham,  200,  324, 

327-328. 
Council,  of  the  Bishop  of  Durham,  ad- 
ministrative functions  of,  1 49-1 51. 
admiralty  jurisdiction  of,  321. 
analogy  of,  to  the  council  of  a  French 

fief,  I43-H4- 
baronial  element  in,  145. 
compared  with  the  concilium  regis  of 

England,  141-T43. 
composition  of,  138-141,  145-148, 184. 
court  of  original  instance,  after  the 

fourteenth  century,  182. 
feudal  origin  of,  144. 
fifteenth-century  notion  of,  148. 
financial  functions  of,  1 51-152. 
general  conclusions  regarding,  155. 
judicial  aspect  of,  180-185. 
legal  and  clerical  element  in,  140-141, 

146. 
local  regulations  issued  by,  127,  150. 
origin  and  development  of,  136-148. 
relation  of,  to  the  Bishop,  152-155. 
rudimentary  ministry  of  state,  144. 
salaries  of  members  of,  144-146. 
styled  concilium  intimum   in  the  fif- 
teenth century,  148. 
Council  {curia),  of  a  French  fief,  143-144. 


Council,  of  the  king,  130,  141-143. 
Council,  of  the  marches :   see  Scotland, 

marches  of. 
Council  of  the  North,  deals  with  an  ad- 
miralty case  arising  in  the  palatin- 
ate, 323. 
erection  and  competence  of,  259, 261- 

262,  291,  324. 
relation  of,  to  the  judiciary  of  the 

palatinate,   259-263. 
troops  raised    by,  in  Durham    and 
Yorkshire,  309. 
County  court,  of  the  bishopric,  abolished 
by  act  of  parliament  (1836),  206. 
meetings  of,  195. 
publication  of  acts  of  parliament  in, 

126-127. 
retained  financial,  administrative,  and 
representative  functions  after  the 
Norman  Conquest,  iii. 
suit  of,  71,  195. 
County  palatine,   origin   of  the  term  in 

England,  8-1 1. 
Cour  majour:  see  Beam. 
Cour pliniere,  of  a  French  fief,  iio-iii. 
Court,  of  the  bishopric,  civil  jurisdiction 
of,  extended  in  1208,  167,  169. 
competence  of,  162-166,  209-216,  315. 
criminal  jurisdiction  of,  168-169. 
held  in  the  sheriffs   house,   in  the 
early  thirteenth  century,  172  note  4. 
procedure  in,  167. 
profits  of,  290-291. 
record  of,  256,  314-315. 
relation  of,  to  the  prior's  court,  169- 

172. 
transition    of,  from  feudal   to   royal 
character,  165-173. 
Court,  or  household,  of  the  Bishop,  99- 

103. 
Court,    of    king's    bench,    for    Durham 

(1825-1836),  204. 
Court,  of  pleas,  of  the  palatinate,  activi- 
ties of  (1825-1836),  204. 
jurisdiction   of,    transferred    to    the 

high  court  of  justice  (1873),  206. 
opinion  of  Lord  Lyndhurst  regarding, 

205. 
reorganizations  of,  in  the  present  cen- 
tury, 206. 
Court,  of  the  prior  of  Durham,  168-172. 
Courts  christian,  of  the  palatinate,  132, 
192. 


INDEX. 


355 


Coxhowe,  T.,  pardoned  by  the  Bishop  for 
default  in  an  action,  257  note  3. 

Craik,  castle  of,  defaulting  debtor  takes 
refuge  at,  249  note  i :  see  Creyk. 

Crake,  Matthew,  case  of,  325. 

Craving  court,  79,  171,  172-173. 

Creping,  John  de,  apostate  monk  of  Dur- 
ham, 134-135- 

Cressingham,  Hugh  de,  186. 

Creyk,  council  of  the  Bishop  held  at,  153 
note  5  :  see  Craik. 

Criminals,  evade  justice  by  removing  to 
the  palatinate,  251-255. 

Cromwell,  Thomas,  letters  to,  74  note  6, 

255- 

orders  the  arrest  in  the  palatinate  of 
four  persons  who  had  committed 
murder  in  Yorkshire  (1534),  252. 

plan  of,  for  the  abolition  of  fran- 
chises and    sanctuaries,    197-198, 

255- 
reports  submitted  to,  255,  262  note 

3- 
Crosby,  Richard,  signature  of,  262  note  2, 
Cumberland,  county  of,  admiralty  judge 
appointed  for,  323. 
criminals  in,  evade  justice  by  remov- 
ing to  the  palatinate,  226. 
exempted  from  taxation  in  the  Tudor 

period,  299. 
invaded  by  the  Scots  {1303),  303. 
the  king  is  advised  to  place  it  under 
the  jurisdiction  of  the  Council  of 
the  North,  261. 
pipe  rolls  for,  334  note  i. 
Cumin,    William,  intrusion   of,    into   the 
see  of  Durham,  20,  35  note  5,  38  note 
I,  dT,,  89,  102. 
Curia  episcopi,  cognizance  of  pleas  of  the 
crown    reserved    for    {1229),   170- 
171. 
permanent  court  sitting  at  Durham, 

169,  170-171. 
rudimentary   development    of,    174- 
175 :   see  Court  of  the  bishopric. 
Cursitors'  records,  330. 
Curtein,  sword  of  S.  Edward  carried  by 
the  earl  of  Chester  at  the  coronation  of 
Henry  IH,  10  note  i. 
Custodians  of  the  peace  in  the  palatinate, 

178-179 :  see  Peace. 
Customs  duties  in  the  palatinate,  275- 
277. 


Custos  rotulorum  in   the  palatinate,  180, 
203  note  2,  206,  270  note  2. 

Dacre,  Thomas,  lord,  king's  lieutenant 

in  the  North  (1523),  253. 
Dalden,  an  estate  of  the  Kscolland  family, 

in  the  palatinate,  113  note  i. 
Dalden,  Jordan  de,  113  note  i. 
Daldene,  William  de,  grant  of  free  war- 
ren to,  61  note  2. 
Dalton,   John,  keeper    of    the   Bishop's 

forge  at  Byrkeknott,  284  note  6. 
Danegeld,    probably    not    paid    by   the 

bishopric,  295-296. 
Danesty,  Richard,  case  of,  174. 
Dapifer,  of  the  Bishop,  102-103,  139. 
Darhngton,  borough  of,  62  note  5,  151. 
Darlington  ward,   of  the   bishopric,   as- 
sessment of,  119. 
coroner  of,  87  note  4. 
David    I,  king  of  Scotland,  attempts  to 
force  William  Cumin  into  the  see 
of  Durham,  20,  38  note  i,  63. 
tries  to  obtain  the  northern  counties 
of  England,  20,  38  note  i,  63. 
Dean,  forest  of,  iron  produced  in,  284. 
Dean   and  chapter   of   Durham,  records 

belonging  to,  334. 
De  pace,  writ,  166,  313-316. 
Default  of  justice,  by  the  Bishop,  cause 

of  interference  by  the  king,  21 1-2 12. 
Delegation,     of     the     Bishop's    govern- 
mental functions,  34-36,  61. 
Denman,  lord,  chief-justice  of  the  court 

of  king's  bench  for  Durham,  204. 
Denum,     William    de,     chancellor    and 

justice  of  the  palatinate,  1S7,  267-268. 
Deodands,  58,  61,  85,  291. 
Derlyngton,   John   de,  deputy  bailiff  of 

Tyndale,  249-250. 
Derwent  and  Ouse,  forests  between,  60. 
Die-keeper,  of  the  Bishop,  280. 
Dirlton  Castle,  besieged  by  Bishop  Bek, 

129  note  2,  303. 
Distraint  of  knighthood,  in  the  palatinate, 

287-288. 
Dodesworth,   Matthew,   admiralty  judge 

for  the  northern  counties  of  England 

(1619),  323. 
Doe,  John,  and  Richard  Roe,  202-203. 
Dolfin,  son  of  Ughtred,  55  note  2. 
Dolfinus,  witnesses  a  charter  of  Bishop 

Geoffrey,  138. 


35^ 


INDEX. 


Domesday  Book,  omission  of   Durham 

from,  1 8,  25-27,  159,  295. 
Doncaster,  conference  at  (1536),  260. 
Drengage,  133,  289-290. 
Drewe,  Edward,  royal  justice  itinerant  in 

the  palatinate  (1600),  198. 
Ducket,  Richard,  justice  itinerant  in  the 

palatinate,  175. 
Dudley,   William,   Bishop    of    Durham, 

authorizes  the  duke  of  Gloucester  to 

raise   troops  in  the  palatinate  (1480), 

307- 
Duel,  procedure  by,  in  the  court  of  the 

bishopric,  167  :  see  Wager  of  battle. 
Dunkirk,   John   Forwender   of:  see  For- 
wender,  John 
vessel   from,   323. 
Durham,  archdeacon  of,  pays  for  a  plea 
of  his  men  (1130),  290. 
quarrel  of,  with  the  prior  of  Durham, 

154- 
Durham,  Bishop  of,  able  to  live  of  his 

own,  120,  127. 
actions  would  not  lie  against,  in  his 

own  courts,  68. 
capacities  of,  301. 
court  or  household  of,  99-103. 
feudal  relation  of,  to  the  king,  301. 
forests  of,  59-61. 
head  of  the  civil  government  in  the 

palatinate,  31. 
judgment  of,  subject  to  revision  in 

king's  bench,  212-213. 
judicial  supremacy  of,  in  the  palat- 
inate, 211. 
justice  of  peace  for  the  bishopric  ex 

officio  after  1536,  197. 
liberties  of,  compared  to  those  of  the 

earl  of  Chester  and  the  earl  mar- 
shal, 182  note  2. 
liberties    of,   held    by   right    of   his 

church,  149  note  2. 
position  of,   in  the  legal  system  of 

the  palatinate,  68-75. 
regality  of,  classification  of,  31 :  see 

King,  Regality,  Royal  franchise, 
relation  of,   to    the   assembly,   127- 

136. 
remedy  against,  182. 
revenue  of,  271-294. 
royal  position  of,  in  the  palatinate, 

213. 
scutage  paid  by,  285-286. 


Durham,  Bishop  of,  special  duty  of,  in 
defence  of  the  border,  303. 

state  kept  by,  99. 

status  of,  53,  191-193.  30I' 

summons  of,  in  the  national  courts, 
216-218. 

supposed  appointment  of,  by  the 
earls  of  Northumberland,  18. 

supreme  landlora  m  the  palatinate, 

54-55- 
temporal  relation   of,  to  the   church 

in  the  palatinate,  50-54. 
writ  of,  210,  313-316. 
Durham,  Bishops   of,  who  were  chancel- 
lors of  England,  265  note  3. 
Durham,    bishopric    of,   the     term    ap- 
plied   to    the    county    until     modern 
times,  162:  see  Durham,  county  pala- 
tine of. 
Durham,    castle    of,    belonged    to    the 
barony  of  the  Bishop,  53. 
castellans  of,  91. 
cleaned  and  repaired  for  the  audit, 

269  note  3. 
constable  of,  89,  91. 
exchequer  and  chancery  of  the  palat- 
inate held  in,  271. 
importance  of,  in  the  trial  of  Bishop 

William  I,  26,  301 : 
mint  at,  281. 

seized  by  Henry  II,  37-38. 
Spanish  iron  purchased  for,  284  note 

5- 

treasure  at,  293-294. 
Durham,   cathedral  of,  built  by  Bishop 
William  I,  26-27 

hearth-penny  in  the  palatinate  appro- 
priated to,  272  note  I. 

manuscripts  preserved  at,  336  note  i. 

prebend  in,  238. 

sanctuary  at,  251,  253,  254-255. 
Durham,  city  of,  besieged  by  the  Scots 
(1006),  18. 

corporation  of,  62. 

court  at,  169-17 1. 

farm  of,  151,  277-278. 

house-to-house  visitation  in  {1315), 
122. 

palace  green  at,  190  note  4,  271  note 
5,  280. 

royal  mint  at,  278. 

sub-keeper  of  the  gaol  at,  269. 

tradesmen  of,  201. 


INDEX. 


357 


Durham,  convent  of,  charters  of  founda- 
tion, 107,  160-161. 

founded  by  Bishop  William  I,  160: 
see  Durham,  prior  and  convent 
of. 
Durham,  county  palatine  or  bishopric  of, 
abolished  by  act  of  parliament 
(1646),  199-200. 

abuses  in  the  administration  of  justice 
in  (1729),  202-203. 

admiralty  judge  appointed  for,  323. 

area  of,  11 5-1 16,  174. 

arrest  between,  and  Northumberland 
subject  to  special  custom,  231. 

attempt  to  abolish,  by  act  of  parlia- 
ment at  end  of  the  seventeenth 
century,  201. 

boundaries  of,  116  note  i. 

buffer  against  Scotland,  76. 

circumference  of,  174. 

constitution  of,  contrasted  with  that 
of  the  kingdom,  2. 

county  court  of :  see  County  court. 

criminals  in,  evade  justice  by  remov- 
ing to  other  counties,  226. 

devastation  of,  by  William  the  Con- 
queror, 26-27. 

distinction  between,  and  other  fran- 
chises, 234,  239-241,  258. 

financial  relation  of,  to  the  central 
government,  294-300. 

geographical  position  of,  28-29. 

immunities  of,  at  the  time  of  the 
Norman  Conquest,  27. 

incorporation  of,  in  the  kingdom  in- 
complete in  108      26. 

inquests  (royal)  taken  in,  241. 

jury  of  knights  drawn  from,  166. 

land  in,  subject  to  execution  through 
the  Bishop,  243. 

legal  position  of,  in  the  kingdom, 
257-258. 

lord-lieutenancy  of,  309. 

military  relation  of,  to  the  central 
government,  301-310. 

mineral  wealth  of,  283-285. 

obligations  contracted  or  performed 
in,  pleaded  in  national  courts,  236, 
239-240. 

omission  of,  from  Domesday  Book, 
18,  25-27,  159,  295. 

origin  of,  12-30. 

parliamentary  representation  of,  300. 


Durham,  county  palatinate  or.  bishopric 

of,  petitions   parliament  to  recon- 

tinue  its  local  courts  (1650),  199. 
petitions  parliament  against  abolition 

of  the  local  judiciary  (1836),  205. 
population  of,  11 5- 116. 
protests  against  the  Council  of  the 

North,  263  note  2. 
punished  by  William  the  Conqueror 

for  the  murder  of  Bishop  Walcher, 

26. 
raids  into  adjoining  counties  by  men 

of,  227. 
recovery  in  banco  of  lands  in,  is  void, 

243- 
revived  at  Stuart  restoration  without 

formal  act,  200. 

seigniorial  jurisdiction  in,  prior  to 
Norman  Conquest,  21-22. 

separated  from  the  Bishop  and  vested 
in  the  crown  {1836),  205-206. 

sheriffs  of  :  see  Sheriff. 

shire-moot  of :  j*?^  Shire-moot. 

subject  to  the  jurisdiction  of  the 
Council  of  the  North,  261-262. 

taxation  of,  by  the  king  and  parlia- 
ment, 298-299. 

troops  raised  in,  by  the  earl  of  Sur- 
rey (1497).  308. 

typical  English  palatinate,  i. 

wards  of,  194 :  see  Chester,  Darling- 
ton, and  Easington. 
Durham,  prior  of,  arranges  a  truce  with 
the  Scots  {1312),  121. 

a  baron  of  the  bishopric,  64,  66. 

claims  right  of  wreck  on  his  lands, 
3^8-319. 

court  of,  168-172. 

elected  by  the  monks  under  a  cong^ 
d'Hire  from  the  Bishop,  50. 

judicial  privileges  of,  160-161. 

last,  became  first  dean,  54. 

quarrel  of,  with  the  archdeacon,  154. 

represents  the  commonalty  in  nego- 
tiations for  a  truce  with  the  Scots 
(1314),  121-122. 

seeks  remedy  against  the  Bishop,  187. 

summoned  to  parliament,  64,  66. 
Durham,  prior  and  convent  of,  affairs  of, 
regulated  by  the  Bishop's  council, 
150. 

appeal  to  York  and  Rome  against 
Bishop  Bek,  141. 


358 


INDEX. 


Durham,  prior  and  convent  of,  comperta 
of,  54- 

endowment  of,  21,  334. 

fare  well  at  the  Reformation,  54. 

only  body  of  regular  clergy  in  the 
palatinate,  50. 

payments  to,  under  terms  of  le  Con- 
vejut,  1 50-1 5 1. 

quarrel  of,  with  Bishop  Bek,  140-141. 

relation  of,  to  the  Bishop  as  head  of 
the  civil  government, in  the  palati- 
nate, 50-52. 

seal  of,  122. 

temporalities  of,  held  by  the  Bishop 

during  vacancy  of  thepriorate,  50-5 1 . 

Durham,  see  of,  spiritual  taxation  of,  300, 

332- 
wealth  of,  99. 

Earl  marshal  of  England,  liberties  of, 
182  note  2. 

Earls,  the  two  (Bohun  and  Bigod),  sup- 
ported by  Bishop  Bek  against  the  king, 
130. 

Earls  palatine,  might  not  be  forced  to 
answer  in  the  national  courts  regarding 
land  in  their  palatinates,  217. 

Easington  ward,  of  the  bishopric,  coroner 
of,  87  note  I,  322. 
survey  of  (1388),  271  note  5,  280,  331. 

Ebstowe,  manor  of,  forfeited  to  the  Bishop, 

45- 
Ecclesiastical   Commission,   Durham    re- 
cordsin  possession  of,328note4,337. 
not  responsible  for  the  proposal  to 
deprive  the  Bishop  of  his  temporal 
power,  204. 
sued  by  the   chancellor  of  Durham 
(1850),  207. 
Ecclesiastical   courts,    in    the   bishopric, 

191-193  :  see  Courts  christian. 
Echiquier,  of  Normandy,  8. 
Edmund,  dapifer  of  Bishop  Pudsey,  102. 
Edward  I,  king  of  England,  adjusts  the 
difficulties    between    Bishop    Bek 
and  his  subjects  (1303),  131. 
letter  of,  to  the  commonalty  of  Dur- 
ham, 131. 
obtains  a  tenth  of  ecclesiastical  bene- 
fices from  the  pope,  300. 
quo  wa!rra«/<7  proceedings  of  (1293), 
210. 
'  redaction  of  the  charters  by,  125. 


Edward  I,  king  01   England,  seizes   the 

temporalities  of  Durham,  1 30-131. 
Edward  II,  king  of  England,  aggressions 
of  the  Scots  during  reign  of,  304. 
asks  the  pope  to  provide   Louis  de 
Beaumont  to  the  see  of  Durham^ 

305- 

asks  the  pope  to  dispense  with  Bishop 
Kellaw's  attendance  at  a  general 
council,  305. 

excuses  Bishop  Kellaw  from  attend- 
ing parliament,  305. 

prohibits  tournaments,  126,  note  4. 

levies  troops  in  the  palatinate,  304. 

reproaches  Bishop  Beaumont  with 
neglect  of  the  borders,  305-306. 

withholds  from  Bishop  Bek  the  for- 
feited estates  of  Bruce  and  Balliol 

(1307),  43- 
Edward  III,  king  of  England,  admiralty 
jurisdiction  developed  in  reign  of, 

z^i.  324- 

asks  for  a  grant  of  wool  in  the  palat- 
inate, 116. 

breach  of,  with  Rome,  274-275. 

confirms  title  to  a  manor  in  the  palat- 
inate granted  by  him,  214. 

forbids  the  archbishop  of  York  to 
raise  money  in  the  palatinate,  274- 

275- 
inspeximus  by,  of  the  charter  of  liber- 
ties issued  by  Bishop  Bek  (1353), 

134- 
orders  the  impressment  of  ships,  310- 

311- 
ordinance   of,  relative   to  provisors, 

126  note  4. 
statute  of  laborers  of,  125 :  see  Labor- 
ers, statute  of. 
Edward  IV,  king  of  England,  mint  of  the 
palatinate  revived  by,  280. 
statute  of,  against  liveries,  221  :   see 
Liveries. 
Egfrith,  king  of  Northumbria,  endowed 
the  see  of  Lindisfarne,  157. 
forged  charter  of,  157  note  2. 
foundation  of  the  palatinate  attrib- 
uted to,  13,  169. 
EggescHffe,  John  :  see  Gyleth,  John. 
Eldon,  lord,  chancellor  of  the  palatinate, 
203. 
suggestions  of,  relative   to  the  pre- 
servation of  the  palatinate,  205-206. 


INDEX. 


359 


Elizabeth,  queen  of  England,  dealings  of 
with  the  palatinate,  49-50,  198. 
dispute  of,  with  Bishop   Pilkington, 

48-49- 
maintained  independent  organization 

of  the  palatine  judiciary,  198. 
reduced  the  revenues  of  the  palat- 
inate, 294. 
seized  a  large  part  of  the  land  of  the 
palatinate,  198,  294  note  3. 
Ellis,  Sir  Henry,  333. 
Elmedene,  John   de,   summoned   to   the 
palatine   chancery  to   answer  for  con- 
tempt of  court,  185. 
Elmedene,  Thomas  de,  recognizance  of, 

185. 
Elmedene,  William  de,  chancellor  of  the 

palatinate,  85  note  6. 
Elmedene,  William  de,  summoned  to  the 
palatine   chancery  to   answer  for  con- 
tempt of  court,  185. 
Elmedone,  Alexander  de,  testifies  to  the 

Bishop's  right  of  wreck,  318. 
Elvet,  a  district  of  the  city  of  Durham, 

62  note  I. 
Elvet,    John    de,    sub-sheriff    and    sub- 
escheator  of  the  palatinate,  70  note 
8,  85  note  6. 
exempted  from  service  on  juries  and 
assizes,  71  note  5. 
Ely,  Bishop   Fordham  translated  to,  48 
note  I. 
bishop  of,  justiciar  of  England,  297. 
Engelarius,  witnesses  a  charter  of  Bishop 

Geoffrey,  138. 
England,  northern  counties  of,  not  incor- 
porated with  the  kingdom  before  the 
reign  of  Henry  II,  29. 
Eriom,  Richard  de,  a  councillor  of  Bishop 

Beaumont,  154. 
Emaldus,  a  councillor  of  Bishop  Pudsey, 

139- 

Error,  writ  of,  75,  184,  212-213. 

Escheator,  of  the  Bishop,  74,  85. 

EscoUand,  Elias,  113  note  i. 

Escolland,  Geoffrey  de,  138. 

Escolland,  Jordan,  son  of  Elias,  113 
note  I. 

Esshe,  Roger  de,  inquest  post  mortem  re- 
garding estates  of,  55  note  5. 

Essoin,  by  service  of  the  feudal  lord, 
71- 

Estray,  58,  61,  85. 


Estreats,  of  Durham  and  Sadberg,  paid 

into  chancery  (1410),  270-271. 
Ethelwin,  Bishop  of  Durham,  flight  of, 

20. 
Etheiwold,  Bishop  of  Lindisfarne,  grant 

to,  15. 
Ettrick,  Walter,  registrar  of  the  palatine 

admiralty  court,  324. 
Eure,  John  de,  murder  of,  214. 
Eure,  Radulfus  de,  justice  of  the  palati- 
nate, 188  note  I. 
Eure,  Ralph  de,  outlawry  of,  221. 
Eure,  Sir  William,  iron  mines  in  the  pa- 
latinate farmed  to  (1433),  2S4. 
Eure,  Sir  William,  counsel  for  the  crown 
in  Bishop  Langley's  suit  in  Parliament 
(1434),  242. 
Eure,   Sir   William,   indenture    of,    with 

Bishop  Nevill  (1438),  147  note  4. 
Eure,  Sir  William,  councillor  of  Bishop 

Wolsey  (1524),  148. 
Evenwood,   barony   of,   sold    to    Bishop 

Bek,  66. 
Evesham,   monks    of,    137 :    see   Aldwin, 

Turgot. 
Ewere,  Rafe,  procures  arrest  of  Durham 

sanctuary  men  (1536),  255. 
Exchequer  of  the  palatinate,  85,  264-271. 
building  constructed  for,  by  Bishop 

Nevill,  271. 
compared  with  the  royal  exchequer, 

92. 
confusion  of,  with  the  palatine  chan- 
cery, 92,  270-271. 
first  definite  mention  of,  264. 
foundation  of,  probably  due  to  Bishop 

Pudsey,  264. 
held   in   Durham  Castle  before   the 

fifteenth  century,  271. 
records  of,  264. 
terms  of,  265-267. 
Exchequer,   couit  of,  in   the   palatinate, 

190-191. 
Excommunicated  persons,  coercion  of,  84. 
Execution  of  judgment,  between  a  fran- 
chise and  the  geldable,  243-255. 
Exemption,  from  juries,  assizes,  and  suit 

of  court  in  the  palatinate,  71. 
Exton,  John,  report   of,   relative   to   the 

Bishop's  admiralty  jurisdiction,  325. 
Extradition,  of  accused  persons  and  crim- 
inals, between  the  palatinate,  other  fran- 
chises, and  the  geldable,  84,  225-230. 


36o 


INDEX. 


Eyres,  general,  in  the  palatinate,  169-170, 

173-174. 
Eyres,    judicial    and    financial,    in    the 
twelfth   century   did  not    include   the 
bishopric,  163. 

Fairs,  62,  278. 

Familia,  of  the  Bishop,  99:  see  Court  of 

the  Bishop. 
Farm,  boroughs  put  to,  277-278. 
Fame,  monks  of,  319. 
Farnham,  Nicholas  de,  physician  of  the 
queen,  becomes  Bishop  of  Durham 
(1241),  38. 
relation  of,  to  his  council,  152-153. 
relation  of,  to  the  prior  and  convent, 

51- 
right  of  wreck  enjoyed  by,  319. 
Faustane,   Adam    de,   pardoned    by  the 

Bishop  for  manslaughter,  69. 
Fellyng,  manor  of,  forfeited  to  the  Bishop, 

43- 

Felony,  pardoned  by  the  Bishop,  70 :  see 
Treason. 

Fengeram,  William  de,  witnesses  a  char- 
ter of  Bishop  Kirkham,  140. 

Ferlington,  Simon  de,  95  note  3. 

Feudal  incidents :  see  Incidents  of  feudal 
tenure. 

Feudal  service  outside  the  palatinate, 
required  by  Bishop  Bek  of  his  tenants, 
128. 

Feudal  tenures,  abolition  of,  201. 

Fines,  levied  in  the  palatinate  valid  in 
national  courts,  256. 

Fines  and  recoveries,  arrangements  for 
making,  during  suppression  of  the  pa- 
latinate (1646-1661),  199-200- 

Fishmongers,  in  the  palatinate,  136. 

Fitz  Geoffrey,  Geoffrey,  case  of,  72 
note  I,  166-167,  209-210,  236,  313-316, 

331- 

Fitz  Geoffrey,  Marmaduke,  witnesses  a 
charter  of  Bishop  Kirkham,  140. 

Fitz  Hamo,  Philip,  sheriff  of  Durham 
under  Bishop  Pudsey,  81  note  i. 

Fitz  James,  Walter,  makes  forfeiture  to 
the  Bishop,  43. 

Fitz  John,  Eustace,  plea  of,  277.  290. 

Fitz  Mardrus,  Robert,  justice  itinerant  of 
the  palatinate,  175. 

Fitz  Rolland,  Oliver,  testifies  to  the  Bish- 
op's right  of  wreck  (1229),  318. 


Fitz   Roy,   Henry:   see  Richmond,  duke 

of. 
Fitz   William,   Sir    Ralph,   retainer  and 

councillor  of  Bishop  Kellaw,  145. 
Flambard,   Ranulf,   Bishop  of  Durham, 
built  Norham  Castle,  91. 
charters  of,  137-138,  329  note  i. 
descendants  of,  80,  316. 
forests  of,  59. 
relations  of,  to  the  prior  and  convent, 

94. 
revenues  of,  292. 
seal  of,  94. 
Flanders,  245,  322, 
Florencia,  Wulkinus  de,  die-keeper  of  the 

Bishop,  280. 
Fordham,    John,    Bishop    of    Durham, 
accounts   of    his  receiver-general, 
146  note  2. 
council  of,  146. 
pardon  granted  by,  293-294, 
petition  of,   to  the  king  and  parlia- 
ment, 48  note  I. 
translated    to    Ely   in    disgrace,    48 
note  I. 
Foreign  relations,  of  the  Bishop  of  Dur- 
ham, 36-41. 
Forests  of  the  palatinate,  59-61,  151. 
Forest  courts  in  the  palatinate,  132. 
Forest  officers  of  the   Bishop,  60,  103- 

104,  132. 
Forester,  William,  accounts  of,  270  note 

I. 
Forfeiture,  41-50 :  see  Felony,  Treason. 
Formedon,  writ  of,  184,  213. 
Fortescue,  Sir  John,  opinions  of,  relative 

to  the  palatinate,  234,  239,  258. 
Forwender,  John,  of  Dunkirk,  kills  Elias 

Potson  at  Hartlepool  (1279),  252. 
Fox,  Henry,  of  Barnard  Castle,  outlawry 

of,  220. 
Fox,  Richard,  Bishop  of  Durham,  defence 
of  the  borders  by,  308. 
institutes  quo  warranto  proceedings, 

35- 
register  of,  332  note  2. 
Franchises,  criminals   taking  refuge  in, 

227-228. 
distinction  between,  and  palatinates, 

240-241. 
instruments  executed  in,  237. 
juries  drawn  from,  240-241. 
scutage  paid  by,  285. 


INDEX. 


361 


Franchises,  things  done  in,  not  of  record 
in  the  national  courts,  256. 
voucher  to  warranty  between,  and  the 
geldable,  232 :  see  Liberties. 
Franchises,  lords  of,  admiralty  jurisdiction 
enjoyed  by,  325-326. 
oath  of,  to  support  an  act  of   1433 
forbidding  the  reception  of  crimi- 
nals in  franchises,  227-228. 
process  against,  219,  246. 
Frankleyne,     William,      archdeacon     of 
Durham  and  chancellor  of  the  palati- 
nate, 260,  262  note  2,  270  note  i,  294 
note  2. 
Free  chace  in  the  palatinate,  133. 
Freeman  (Professor),  view  of,  regarding 

the  concilium  regis,  141-142. 
Freemen,    of    the    palatinate,    share    in 
obtaining  the  charter  of  liberties  from 
Bishop  Bek,  133. 
Freibos,  family  of,  138. 
Freibos,  William  de,  witnesses  a  charter 

of  Bishop  Geoffrey,  138. 
French,  expected  invasions  of  England 

by,  306,  311. 
Friars,  Augustinian,  attempt  to  establish 

a  house  of,  in  the  palatinate,  50. 
Friars,  not  allowed  to  preach  in  Durham, 

50. 
Fulham,  lease  executed  at,  238. 
Fulthorpe,  Sir  Roger,  makes  forfeiture  to 

the  Bishop,  48  note  i. 
Fumage :  see  Hearth-penny. 
Fyrd,  obligation  of  in  the  bishopric,  301- 
303- 

Gainford,  church  of,  165. 
Galleway,  Adam,  recovers  land  against 
the  Bishop  by  petition  to  the  council 
(1372),  183. 
Gamel,  the  clerk,  pays  for  the  duel  of  his 

men,  290. 
Gamel,  son  of  Aelferus,  witnesses  a  char- 
ter of  Bishop  Geoffrey,  138. 
Gaol-delivery,  commission  of,  in  the  pa- 
latinate, 83-84,  85  note  6,  174. 
profits  from,  291. 
Gascony,  legal  position  of,  258. 
Gaston,  William,  justice  of  the  palatinate, 

188  note  I. 
Gateshead,  murder  of  Bishop  Walcher  at, 
107,  109,  137. 
robberies  committed  at,  242. 


Gateshead,  session  of  the  Council  of  the 
North  at,  263. 

Gemot :  see  Assembly. 

Geoffrey,  lord  of  Horden  and  Silkesworth, 
316. 

Geoffrey  Rufus,  Bishop  of  Durham  and 
chancellor  of  England,  265  note  3. 
council  of,  138. 

probable    founder    of    the    palatine 
mint,  278-279. 

Gerardus,  marshal  of  Bishop  Pudsey,  loi. 

Germany,  5-6,  322. 

Gervaux,  abbot  of,  buys  mortmain  licence 
from  Bishop  Skirlaw,  74. 

Gilbert,  nephew  of  Bishop  Walcher,  137 
note  I. 

Gilbertus,  tenant  of  Bishop  Kirkham, 
265  note  I. 

Gilbertus,  grant  to,  by  the  prior  of  Dur- 
ham, 57  note  7. 

Gildeford,  Henry  de,  chancellor  of  the 
palatinate,  95  note  5. 

Gilet,  Gilbert,  killed  in  self-defence  by 
Adam  de  Faustane,  69, 

Gillowe,  Henry,  chancellor  and  receiver- 
general  of  the  palatinate,  190  note  3, 

Gloucester,  duke  of,  authorized  by  Bishop 
Dudley  to  raise  troops  in  the  palat- 
inate (1480),  307. 

Gneist  (Dr.),  view  of,  regarding  the  conci- 
lium regis,  243. 

Gold,  in  the  kingdom  belonged  to  the 
king,  58. 

Goldbetter,  Bartholomew,  goldsmith  of 
York,  280. 

Goswyk,  manor  of,  forfeited  to  the  Bishop, 

43- 

Gray,  Ralph,  obtains  from  the  Bishop  his 
father's  forfeited  estates,  45. 

Gray,  Thomas,  chief  justice  of  the  pa- 
latinate (1349),  177. 

Gray,  Thomas,  a  ward  of  the  Bishop,  ab- 
duction of  (1369),  56. 

Gray,  Sir  Thomas,  makes  forfeiture  to  the 
Bishop,  45. 

Graystanes,  Robert  de,  historian  of  Dur- 
ham, 333. 

Greatham,  manor  of,  forfeited  to  the 
Bishop,  42. 

Greenfeld,  William  de,  archbishop  of 
York  and  chancellor  of  England,  95 
note  5,  134- 

Greenwell  (Canon),  289,  333,  334,  335. 


362 


INDEX. 


Greet,   Peter  de,  marshal  of    the  king, 

150. 
Grey,  lord  Richard   de,  admiral  of  the 

king's  fleet  (1402),  311. 
Guthred,     king     of    the     Northumbrian 
Danes,  grants  of,  to   S.  Cuthbert, 
13,  15-16,  158. 
statue  of,  in  Durham  cathedral,  16. 
Gyleth,  John,  of  Eggescliffe,  steward  of 
the  palatinate,  79  note  6. 

Haliwerfolc,  21-24,  109-110,  112,  116. 

128  note  4,  167. 
Hall,  (Mr.  Hubert),  definition  of  cornage, 

289. 
Halmotes,  in  the  bishopric,  132,  196. 
Hankford,  justice,  opinion  of,  relative  to 

the  palatinate,  238. 
Hansard,  barons  of,  66,  138,  140. 
Hansard,  Gilbert,  66. 
Hansard,  Sir  John,  66. 
Hanse,  merchants  of,  322. 
Hard}',  Sir  Thomas  Duff  us,  13-16,  328- 

329.  332- 
Hart  and  Hartnesse, manors  of,  42-44, 319. 
Hartlepool,  borough  of,  admiral  of  Eng- 
land had  no  authority  at,  31 1  note  3. 

appears  at  general  eyre,  254. 

capitalis  phicerna  of  the  Bishop  at, 
103,  276. 

church  of  S.  Hilda  at,  87,  254. 

customs  duties  levied  at,  219-220, 
276-277. 

fined,  252. 

forfeited  to  the  Bishop  by  Robert 
Bruce,  43. 

inquests  taken  at,  by  the  king's  writ, 
241. 

juries  could  not  be  drawn  from,  by 
the  royal  justices,  236. 

permission  to  land  French  and  Flem- 
ish troops  at,  granted  by  Bishop 
Pudsey  to  the   king  of   Scotland 

(1 173).  37- 
rights  of  the  Bishop  at,  310. 
sanctuary  at,  87,  251,  254. 
searchers  appointed  at,  by  the  king, 

276. 
ship  that  was  royal  forfeiture  removed 

to,  245. 
wreck  at,  belonged  to  the  Bishop,  319. 
Hartlepool,  Geoffrey  de,  case  of,  211-212, 


Hartlepool,  John,  vouched  to   warranty 

in  the  court  of  the  palatinate,  233. 
Hartlepool,  John  de,  auditor  of  the  pal- 
atine accounts,  268  note  5. 
Hatfield,   Thomas,    Bishop   of    Durham, 
college  at  Oxford  founded  by,  1 50. 
commissions  issued  by,  97,  124  note 

I,  13s,  136,  177,  178-179. 
grants  made  by,  61  note  2,  62,  145 

note  6. 
household  of,  100. 
letter  of,  to  the  commonalty  of  the 

palatinate,  135  note  2. 
policy    of,    regarding     liveries,     145 

note  6. 
privileges  of,  as  earl  palatine  acknowl- 
edged by  Edward  IH,  275. 
records  of,  125,  330,  332  note  2. 
treasure  of,  at  Durham  Castle,  293- 
294. 
Hay,    Peter    del,    chamberlain     of    the 

Bishop,  93  note  8,  267  note  6. 
Hearth-penny,  in  the  bishopric,  appropri- 
ated to  the  fabric  of  the  cathedral  of 
Durham,  272  note  i. 
Heberne,  William  de,  suit  of,  against  the 
collectors  of  a  tax  in   Durham,    122- 
123. 
Helias,  councillor  of  Bishop  Pudsey,  139. 
Helmygdene,   land    in,   held  of    Bishop 

Kirkham,  265  note  i. 
Helperby,  in  Yorkshire,  327. 
Ilemingburgh,  Walter  of,  140,  333. 
Henricus,  marshal  of  Bishop  Pudsey,  loi. 
Henricus,  steward  of  the  bishopric  (1129), 

79  note  6. 
Henricus,  steward  of  the  bishopric  (1180), 

79  note  6. 
Henry  I,  king  of  England,  charter  of,  to 
Bishop  Flambard,  59, 
inquest  taken  in  the  reign  of,  rela- 
tive to  the  Bishop's  rights  in  the 
river  Tyne,  320. 
liberties  of  the  Bishop  in  the  reign 
of,  162,  296. 
Henry  II,  emperor,   attempted  to  check 
the  independence  of  the  Italian  comites 
palatini,  5. 
Henry    II,   king    of    England,   appoints 
Roger  Conyers  constable  of  Dur- 
ham Castle,  89. 
calls  Bishop  Pudsey  his  cousin,  161 
note  2. 


INDEX, 


363 


Henry  II,  king  of  England,  charters 
granted  by,  to  Bishop  Pudsey,  161- 
162,  209,  296,  320. 
importance  attributed  by,  to  the  sup- 
port of  the  Bishop  of  Durham 
against  Scotland,  37. 
procedure  introduced  by,  transmitted 

to  the  palatinate,  112. 
reign  of,  a  critical  period  for  English 

franchises,  27. 
requires  Bishop  Pudsey  to  report  the 
number  of  knights'  fees  held  of  him, 
286. 
sends  his  justices  to  the  bishopric  to 
execute   the  Assize  of  Clarendon 
with  the  consent  of  the   Bishop, 
163. 
Henry  V,   king    of    England,    acknowl- 
edges Bishop  Langley's  right  to  have 
forfeitures  of  war  in  the  palatinate,  44. 
Henry  VI,  king  of  England,  a  statute  of, 
proclaimed  in  the  palatinate  in  an  ir- 
regular manner,  126  note  4. 
Henry  VIII,  king  of  England,  act  of  re- 
sumption procured  by  (1536),  196- 
197. 
approves  the  conduct  of  the  duke  of 
Norfolk  in  holding  assizes  at  Dur- 
ham without  a  commission,  261. 
erects  a  court  of  Wards,  200. 
maintains  the  independent  organiza- 
tion of  the  palatine  judiciary,  198. 
recommended  to  seize  all  lordships 
and    special    jurisdictions   in    the 
north  of  England,  261. 
reorganizes  the  admiralty  jurisdiction 

of  the  kingdom,  323,  324. 
revenues  of  the  Bishop  not  greatly 
reduced  by,  294. 
Herbcit  II,  count  of  Vermandois,  used 

the  title  comes  palatimis,  7. 
Hereford,  action  on  an  instrument  dated 

at,  removed  to  Chester,  235. 
Hereford,   Richard  of,  an  alleged  idiot, 

57- 
Hereford,  Walter  of,  father  of  Richard, 

57- 
Herington,  Thomas  de,  justice  itinerant 

of  the  palatinate,  176. 
Herrington,  collector  of,  270  note  i. 
Heselrig,   Donald   de,   alleged    to    have 

alienated  without  due  licence  land  held 

of  the  prior  of  Durham,  188. 


Hetworth,  John  de,  of  Ireland,  incurs 
judgment  by  default  in  the  court  of  the 
palatinate,  251. 

Heworthe,  wood  of,  335  note  2. 

Hexham,  district  of,  part  of  the  earldom 
of  Northumberland  (1087),  18, 

Hexham,  John  de,  under-sheriff  of  Dur- 
ham and  Sadberg,  85  note  6. 

High  court  of  admiralty,  324,  325. 

High  court  of  justice,  absorbs  the  pala- 
tine court  of  pleas  (1873),  2°^- 

High  sheriff,  of  the  palatinate,  85-86: 
see  Sheriff. 

High  steward,  of  the  Bishop's  household, 
102-103. 

High  steward,  of  the  palatinate,  80 :  see 
Steward. 

Highway,  a  royal,  traversed  the  palati- 
nate, y]. 

Hillary,  justice,  his  doctrine  of  the 
competence  of  the  palatine  courts,  215. 

Plilton,  barons  of,  64-66,  138. 

Hilton,  Alexander  de,  64-65. 

Hilton,  Robert  de,  65,  178. 

Hilton,  vill  of,  65. 

Historical  Manuscripts  Commission,  re- 
ports of,  331. 

Holbech,  Ralph  de,  summoned  to  West- 
minster, 224. 

Holdenbourne,  on  the  march  between  the 
bishopric  and  the  county  of  Northum- 
berland, 231. 

Holderness,  district  of,  part  of  the  earl- 
dom of  Northumberland  (1087),  18. 

Holland,  323. 

Holy  Island,  Scottish  outlaws  take  re- 
fuge at  (1204),  225-226. 

Homines  sancti,  22. 

Hoop,  Henry,  a  merchant  of  the  Hanse, 
322. 

Horace,  quoted  in  the  report  of  Geoffrey 
Fitz  Geoffrey's  case,  166,  314-315. 

Horden,  lordship  of,  316. 

Hospiciarius :  see  Dapifer,  Senescallus 
hospicii. 

Hospicius,  of  the  Bishop,  269  note  3. 

Hostages,  given  by  the  commonalty  of 
the  bishopric  to  the  Scots,  122. 

Hosttarhis,  of  Bishop  Pudsey,  139. 

Hoton,  Richard,  prior  of  Durham,  52,  88, 
230,  247  note  I. 

Houghton,  rector  of:  see  S.  Botolph, 
William  de. 


364 


INDEX. 


Household,  of  the  Bishop,  99-103. 
House  steward,  of  the  Bishop,  102-103, 

Hoveden,  a  manor  of  the  Bishop  in 
Yorkshire,  80,  152  note  2,  268  note  5, 

319. 
Howden,   Amerik,  makes    forfeiture    to 

the  Bishop,  43. 
Hugh,  the  man  of  Walter,  290. 
Hugo,  ^'■filius  Pyncun,"  102   note  5 :   see 

Pynton,  Hugh. 
Hull  (Kingston-on-HuU),  rising  at  (1537), 
261. 
under  jurisdiction  of  the  Council  of 
the  North,  262. 
Humfraville,  Peter  de,  witnesses  a  charter 

of  Bishop  Flambard,  138. 
Hundred  court,  in  the  bishopric,  194. 
Huntingdon,  county  of,  268  note  5. 
Huntingdon,  earl  of,  admiral  of  England, 

Ireland,  and  Aquitaine  (1456),  311. 
Hurcheworth  Brian,  an  action  to  recover 

(1306),  233:  J/.?  Odeliva. 
Hutchinson,  William,  history  of  Durham 

by,  335-336. 

views  of,  regarding  the  chancellor  of 
the  palatinate  and  the  council  of 
the  Bishop,  94-95,  144  note  2. 
Hyndin,  Robert,  chancellor  of  the  palat- 
inate, Z"]  note  5. 
Hyndmer,  Robert,  signature  of,  262  note  2. 

ICLEFLET,  vill  of,  172  note  5. 

Idiots,  custody  of  the  lands  of,  in  the 
palatinate,  56-57,  283. 

////  de  episcopatu,  115  :  see  Assembly, 
Bones  gentz  de  la  fraunchise,  Common- 
alty, CommunitaSy  Community,  People, 
Populus. 

Incidents,  of  feudal  tenure,  57. 

Indemnity,  letters  of,  issued  by  the  king 
to  the  Bishop,  117,  163. 

Indentures,  use  of,  at  the  palatine  ex- 
chequer, 269-270. 

Industrial  corporations,  of  the  palatinate, 
278. 

Inigna,  John,  councillor  of  Bishop  Pud- 
sey,  139. 

Inn-keepers,  of  the  palatinate,  136. 

Inquests,  could  not  be  taken  by  the  king's 
writ  in  the  palatinate,  240-242. 

Inquests  ad  quod  damnum^  in  the  pa- 
latinate, 74. 


Inquests  post  mortem,  in  the  palatinate, 

55-56. 
Insurrections,  in  the  palatinate,  pardoned 

by  the  Bishop,  70. 
Interchange,   of     persons    between    the 
palatine    and    royal    judiciaries,    176- 
177. 
Ireland,  admiral  of,  311, 
legal  position  of,  258. 
obligations  made  in,  236. 
John  de  Hetworth  of :  see  Hetworth, 
John  de. 
Iron,  produced  in  the  palatinate,  58,  104 

note  I,  283-285. 
Isabella,  queen  of  Edward  II,  urges  the 
promotion  of    Louis  de  Beaumont  to 
the  see  of  Durham,  305. 
Islandshire,  justices  of,  170. 
manors  in,  43. 

parcel  of  the  county  of  Durham  al- 
though lying  in  Northumberland, 
20,  157  note  I. 
steward  of,  80. 

surrendered  to  the  king  (1604),  294 
note  3. 
Isle  of  Man,  assembly  of,  112:    see  Tyn- 
wald. 
Bishop  Bek  was  lord  or  king  of,  131 

note  I,  293. 
contributions    of,   to   Bishop    Bek's 
revenue,  293. 
Italian    merchants,   lend    money    to    the 
Bishop  of  Durham,  93. 

Jackson,  Henry,  327-328. 

Jeland,  Adam  de,  steward  of  Durham,  79 
note  6. 

Jeland,  Sir  Nicholas  de,  79  note  6. 

Jennye,  serjeant,  procures  arrest  of  Dur- 
ham sanctuary  men  (1536),  255. 

Jersey,  assembly  of,  144  note  2. 

Jerusalem,  Bishop  Bek  was  patriarch  of, 
131  note  I. 

John,  king  of  England,  calls  out  the  na- 
tional army,  302. 
charters  of,  to  the   Bishop,  166-167, 

313. 
founder  of  the  palatinate   from  the 
point  of  view  of  legal  history,  169. 
John,  Scotus  inimicus  et  rebellis,  249. 
Jonsone,   Sir   John,  of    York,    pardoned 
for   collecting   an   assembly    of   armed 
men  at  Barnard  Castle,  242. 


INDEX. 


365 


Judgment,  execution  of,  between  a  fran- 
chise and  the  geldable,  243-255. 
Judicial   officers,  of    the    palatinate,  ap- 
pointed by  the  Bishop,  104. 
appointed    by  the   king  after   1536, 

196. 
salaries  of,  179-180. 
sanction  of,  74. 
Judicial  offices,  in  the  palatinate,  sold  to 

unsuitable  persons  (1729),  203. 
Judiciary  of  the  palatinate,  collapse  of, 
during  the  Rebellion,  198. 
development  of,  156-165,  173-178. 
effect   of   Henry   VIII's   act  of   re- 
sumption on,  196-197. 
history  of,  from  the  seventeenth  cen- 
tury, 198-208. 
independent  organization    of,   main- 
tained by  Henry  VIH  and  Eliza- 
beth, 198. 
interchange  of  persons  between,  and 

the  royal  judiciary,  176-177. 
picture  of,  in  le  Convenit,  169. 
proposed  abolition  of  (1836),    204- 

206. 
relation   of,   to   the   Council   of  the 

North,  259-263. 
relation   of,  to  the  royal    judiciary, 
209-216. 
Jura  regalia,  15,  18,  41,  48-49,    199,  276, 

287-288. 
Juries,  exemption  from  serving  on,  in  the 
palatinate,  71. 
not  summoned  in  1729,  202. 
Justices,  the  Bishop's,  forbidden  to  hold 
pleas  by  the  Bishop's  writ  (1224), 
210. 
their  ignorance  of    the  law  (1729), 
202-203. 
Justices,  the  king's,  financial  and  judicial 
circuits  of,  did  not  include  the  bishopric, 
209,  296. 
Justices  of  the  peace,  179,  197  :  see  Peace. 

Kellaw,  Richard,  Bishop  of  Durham, 
ambassadors  received  by,  40  note  4. 

appointments  and  commissions  is- 
sued by,  102,  127,  144,  178,  267. 

character  of,  100,  153. 

charters  of,  145. 

chief  justice  of,  177. 

constitutions  of,  332. 

disliked  by  the  king,  121. 


Kellaw,    Richard,   Bishop    of    Durham, 

endeavors  to  recover  the    Bruce 

and  Balliol  forfeitures,  44. 

excused    from   attending  a   general 

council      (1311)     and    parliament 

(i3i3)»  SOS- 
fair  erected  by,  62. 
fines  with  the  king  to  escape  an  eyre 

in  the  palatinate,  121,  273. 
free  warren  granted  by,  61. 
incurs  a  fine    for   neglect  of  feudal 

obligation,  153,  301. 
letter  of,  to  the  earl  of  Warwick,  I2r. 
policy  of,  relative  to  liveries,  145. 
pontificate  of,  disturbed  by  Scottish 

invasions,  121-122. 
register  of,  125,  320,  329,  332. 
relation  of,  to  his  council,  141,  146, 

153- 
royal  liberties  of,  44. 
taxed  the  clergy  of  Durham,  274. 
will  of,  100. 
Kellaw,    William    de,    commissioner  to 

raise  a  tax  in  Durham  (131 5),  122. 
Kelsey,  Robert,  senescallus  hospicii  of  the 

Bishop  {1456),  103. 
Kent,  earldom  of,  9  :  see  Odo  of  Bayeux. 
Keyling,  John,  chancellor   and  receiver- 
general  of  the  palatinate,  95, 190  note  3. 
King,  the  Bishop  as,  in  the  palatinate,  28, 
31,  ^6,  213 :  see    Durham,    Bishop  of. 
Regality,  Royal  franchise. 
King,  of  England,  appointment  of  custodes 
pacts  in  the  palatinate  ordered  by, 
179. 
arrests  in  the  palatinate  ordered  by, 

184. 
contributions  of  troops  from  the  pa- 
latinate requested  by,  303-310. 
debts  of,  collected  in  the  palatinate, 

248. 
dominus  superior  of  the  whole  king- 
dom, 211,  233. 
financial  relation  of,  to  the  palatinate, 

116-118,  294-300. 
matters  touching  his  person  beyond 
the  competence  of     the  palatine 
courts,  211. 
prerogative  of,  as  a  limitation  on  the 
competence  of  the  palatine  courts, 
213-215. 
presented    to    the   Bishop's    livings 
during  vacancies  of  the  see,  215. 


366 


INDEX. 


King,  of  England,  taxation  of  the  pa- 
latinate by,  116-118,  294-300. 
title  derived  from,  raised  a  presump- 
tion of  validity,  214:  see  Edward 
I-IV,  Henry  I-VIII,  Richard  I- 
III,  William  I-II. 
King's  bench,  court  of,  212. 
King's  Lynn,  Adam  de,  case  of,  230-231. 
Kingston-on-Hull :  see  Hull. 
Kirkeby,  John  de,  attorney  of  Walter  the 

clerk,  172  note  5. 
Kirkeby,   William    de,   coroner    of    the 

Chester  ward,  87  note  i. 
Kirkham,  Walter  de,  Bishop  of  Durham, 
council  of,  139-140. 
land  held  of,  265  note  i. 
mint  of,  279  note  8. 
right  of,  to  have  wreck  in  the  palati. 
nate,  319. 
Knighthood,  distraint  of,  287-288. 
Knights  and  freeholders  of  the  bishopric, 

appeal  to  the  king,  120. 
Knights'  fees,  held  of  the  Bishop  of  Dur- 
ham, 285-286. 
Kyngstone,  John  de,  chancellor  of  the 
palatinate,  187. 

Laborers,  statutes  of,  125,  179,  257. 

Lambert,  Robert,  guilty  of  murder  in  the 

palatinate,  is  taken  out  of  sanctuary  at 

Tynemouth  and  delivered  to  the  sheriff 

of  Durham  (1523),  253. 

Lancaster,  county  of,  part  of  the  earldom 

of  Northumberland  (1087),  18. 
Lancaster,  county  palatine  of,  corresponds 
to  the  French  fief,  i. 
issues   sent  to  be  tried  in,  by  the 

king's  justices,  238. 
lease  of  land  in,  executed  in  Middle- 
sex subject   of   an   action  in   the 
national  courts,  238, 
outlawry  decreed  in,  221. 
privileges  of,  created  by  parliament, 

258. 
recovery  in  banco  of  land  in,  is  void, 

243- 
united  to  the  crown  of  England,  196. 
Lancaster,  earl  of,  conspiracy  of,  214. 
Lanchester,  collegiate  church  of,  224. 
Langley,    Thomas,  Bishop    of  Durham, 
binds    over    one    of    his    subjects    to 
make  no  private  truces  with  Scotland, 
39- 


Langley,   Thomas,   Bishop    of    Durham, 

chancellor  of  England,  265  note  3. 

commissions    issued    by,    117,    147- 

148. 
correspondence  of,  with  foreign  towns, 

40. 
directed  by  the  king  to  administer 
an  oath  to  his  subjects  relative  to 
the  observation  of  a  certain  statute 
(1434),  228. 
fails  to  obtain   seisin  of   the  Bruce 

and  Balliol  forfeitures,  44. 
indenture  between,  and  Sir  Robert 

Ogle,  147  note  4. 
legacies  of,  to  his  household,  loi. 
licence  issued  by,  for  the  election  of 

a  prior  of  Durham,  98. 
oath  taken  by,  to  observe  a  certain 

statute  (1434),  228  note  5. 
obtains  letters  of  indemnity  after  the 
king  had  raised  a  tax  in  the   pa- 
latinate, 298. 
precedents  in  the  time  of,  relative  to 
allowances  for  auditors'  expenses, 
268  note  5. 
register  of,  332  note  2. 
rights  of,  in  the  bridge  at  Newcastle^ 

276. 
state  kept  by,  100. 
suit  of,  in  parliament,  241-242. 
Lasci,  John  de,  councillor  of  Bishop  Bek, 

141. 
Latona,  William  de,  316. 
Latton,  William  de,  313-314. 
Laud,  William,  archbishop  of  Canterbury, 

300  note  I. 
Laurence,  prior  of  Durham,    poems  of, 

283. 
Lamson,    John,   indicted    of    murder  in 
Northumberland,  extradited  from   the 
palatinate  (1535),  229. 
Lead,  produced  in  the  palatinate,  58,  283- 

285. 
Leges  et  consuetudines  S.  Cuthberti,  13. 
Leia,  de,  family  of,  139-140. 
Leland,  John,  337. 
Leobwine,  a  councillor  of  Bishop  Walcher, 

m^  159-160. 

Leucknore,  Geoffrey  de,  justice  and  stew- 
ard of  the  palatinate  and  justice  itine- 
rant of  the  king,  79  note  6, 175. 

Lewyn,  Robert,  327  note  i. 

Lex  S.  Cutkbertu  108. 


INDEX. 


367 


Liberties    and    franchises,    held    of    the 
Bishop  in  the  palatinate,  34,  149  note 
2,  173  :  see  Franchises. 
Lieutenant  of  the  king,  in  the  northern 

counties  of  England,  259-260. 
Lilburne,  Richard,  offers  battle  in  a  real 

action  (1636),  263  note  2. 
Lincoln,  county  of,  knights'  fees  held  of 
Bishop  Pudsey  in,  286. 
lands  in,  held  of  the  Bishop,  217-218. 
question  of  the  possession  of  land 
in,  raised   in    the   palatine    courts 
causes  the  plea  to  be  discontinued 
(1341),  184, 213 :  see  York,  county  of. 
sheriff  of,  217-218. 
Lincoln,  earl  of,  arbitrates  between   the 

Bishop  and  Peter  de  Brus,  319. 
Lincoln,  parliament  of,  130,  247  note  i. 
Lincolne,  Alicia  de,  abjures  the  realm  at 

Hartlepool  (1279),  254. 
Lindisfarne,  see  of,  156,  295. 
Lisle,    Robert   de,    Bishop    of    Durham, 
council  of,  140. 
quarrel  of,  with  the  king  of  Scotland, 

38-39- 
will  of,  176  note  5. 
Liulf,  councillor  of  Bishop  Walcher,  136- 

137,  159-160. 
Liveries,  statute  against,  221,  257. 
Local  courts,  of  the  palatinate,  194-196. 
London,  city  of,  221,  239,  280,  284,  328- 

329,  ZZ^' 

London,  see  of,  gross  income  of  (1835), 

294. 
Londonderry,  lord,  205. 
Lorraine,  comes  palatinus  of,  6. 
Louthre,  Hugh  de,  receives  grant  of  free 

warren  from  Bishop  Kellaw,  61. 
Lumley,  Sir  Thomas,  and  Margaret  his 

wife,    receive    grant    of    wreck    from 

Bishop  Nevill  (1432),  62-63. 
Lumley,   Sir   Thomas,   chief   forester  of 

the  Weardale  (1375),  60  note  4,  98. 
Lumnes,  John  de,  justice  itinerant  of  the 

palatinate,  175. 
Lyndhurst,  lord,  opinion  as  to  court  of 

pleas,  205-206. 
Lyttleton,  Sir  Thomas,  opinion  on  corn- 
age,  289. 

Maceon,  Ralph  le,  and  Emma  his  wife, 
recover  land  against  the  Bishop  by 
petition  to  the  council,  182,  186-187. 


Magister  equorttm  episcopi,  102. 

Magna  carta,  72,  125. 

Magna  caza,   the  autumn   battue  in  the 

Weardale,  60. 
Magnus  camerarius,  of  the  Bishop,  93. 
Maintenance,  writ  of,  257. 
Maitland  (Professor),  25,  159,  289. 
Major  jiisticiarius,  of  the  palatinate,  177. 
Malefactors,  punishment  of,  33-34. 
Man,  Isle  of :  see  Isle  of  Man. 
Manorial  returns,  of  the  Bishop,  283. 
Manslaughter,  68-70. 
Marches  :  see  Scotland,  marches  of. 
Marescallus,  of  Bishop  Pudsey,  loi,  139. 
Marescallus  hospicii,  of  Bishop   Skirlaw, 

lOI. 

Mareschal,  Henry  le,  loi. 
Marisco,  Richard  de,  Bishop  of  Durham 
and  chancellor  of  England,  265  note  3. 
Markets,  erected  by  the  Bishop,  62. 
Marmaduke,  John,  a  leader  in  the  move- 
ment   to  obtain   a  charter  of  liberties 
from  Bishop  Bek,  120,  129,  131. 
Marmaduke,    Sir    Richard,    steward    of 
Durham  and  Sadberg  and  councillor  of 
the  Bishop,  78,  102  note  8,  144,  145, 149. 
Marshal,  of  the  Bishop,  101-102. 
of  the  king,  291. 

of  the  palatine  admiralty  court,  324. 
Marshall,   family   of,  in    the    palatinate, 

loi  note  8. 
Marshalsea,  court  of,  in  the  palatmate, 

36,  ?,2,  102,  194,  278,  291. 
Masham,  Henry,  lord  Scrope  of,  45. 
Masham,  Robert,  monk  of  Durham,  221. 
Matthew,   Tobias,    Bishop    of    Durham, 
chancery   roll   of,  331. 
complains  to  Cecil  of  the  heavy  mili- 
tary service  required  of  the  palat- 
inate, 309. 
surrenders  Islandshire  and  Norham- 
shire  to  the  king,  294  note  3. 
Mauley,  Stephen  de,  archdeacon  of  Dur- 
ham   and    steward   and    councillor    of 
Bishop   Bek,    140,    141  :    see   Stephen, 
dominus. 
Melbourne,  lord,  suggests  that  the  Bishop 
be   deprived   of    his   temporal   power, 
204. 
Melsanby,  Thomas  de,  prior  of  Colding- 
ham,  election  of,  to  the  see  of  Durham 
quashed  by  Henry  III,  3S. 
Men  of  S.  Cuthbert :  see  S.  Cuthbert. 


368 


INDEX. 


Menevill,  John  de,  justice  of  the  palati- 
nate, 69. 

Merton,  Walter  de,  councillor,  chancellor, 
justice  and  clerk  of  the  Bishop,  and 
clerk  in  the  royal  chancery,  95,  175-176, 
181,  265. 

Metham,  Thomas  de,  removed  from  the 
office  of  chief  justice  of  the  palatinate 

{1349),  177- 
Metham,     Sir    Thomas,    brings    action 

before  the  king's  justices  (1345),  220. 
Metkalff,  John,  signature  of,  262  note  2. 
Meynell,  Robert,  signature  of,  262  note  2. 
Mickleton,  a  Durham  antiquary,  108.  . 
Middlesex,  county  of,  238. 
Militia,  of  the  palatinate,  309-310. 
Mines,  in  the  bishopric,  58,  78,  283-285. 
Ministers'  accounts,    of    the    palatinate, 

ZIP- 
Mint,  of  the  palatinate,  58,  278-282. 

abolition  of,  in  the  sixteenth  century, 

282. 
furniture  of,  280-281. 
origin  of,  278-279. 
re-establishment    of,    by   Richard  I 

and  Edward  IV,  279,  280. 
right  of  the  Bishop  to  have,  279-280. 
saving  clause   for,   in  a    statute    of 

Henry  VIII,  281. 
source  of  revenue  to  the  Bishop,  282. 
subject  to  the  control  of  the  national 
exchequer  in  the  reign  of  Henry 
VII,  281. 
Monks,  of  Durham,  had   the  exclusive 
right  of  preaching  in  Durham,  50. 
two,  arrested  at  York,  230. 
Montfort,  Peter  de,  makes  forfeiture  to 

the  Bishop,  42. 
Montgomery,  Roger,  earl  of  Shropshire, 
probably  had  palatine   jurisdiction,  9, 
81. 
Mora,  Simon  de,  253  :  see  Odeliva. 
Moray,    earl    of,   representative    of    the 
king  of   Scotland   to   arrange  a  truce 
with  the  commonalty  of  the  palatinate, 

T2I-I22. 

Morkar,  earl  of  Northumbria,  17. 
Mortmain  licences,  issued  by  the  Bishop, 

72-74,  125,  291. 
Mortmain,  statute  of,  72-74,  125, 
Morton,    Thomas,    Bishop    of    Durham, 

asserts   his    admiralty   prerogative    in 

the  palatinate,  323. 


Morton,  Colonel  Sir  Thomas,  in  charge 
of  the  trained  bands  of  the  northern 
counties  (1638),  309-310. 

Municipal  corporations,  in  the  palatinate, 
277-278. 

Murage,  grants  of,  by  the  Bishop,  36,  277. 

Narrafores,   employed    by   the   Bishop's 

council,  181. 
Naval  arrangements,   in   the   palatinate, 

310-311. 
Nevill,  family  of,  140,  230  note  i. 
Nevill,  Charles,  earl   of  Westmoreland, 

attainder  of  (1570),  47. 
Nevill,    Humfrey,     attainted    and    out- 
lawed (1469),  252. 
Nevill,   Sir  John,   councillor   of  Bishop 
Hatfield,  obtains  leave    to   fortify 
Raby  Castle,  145  note  6. 
receives  grant  of  a  fair  and  market 
at  his  vill  of  Staindrop,  62. 
Nevill,  lord,   placed   in    charge    of    the 

marches  (1499),  308. 
Nevill,  Ralph  de,  case  of,  212,  221. 
Nevill,  Ralph  de,  a  leader  in  the  move- 
ment to  obtain  a  charter  of  liberties 
from  Bishop  Bek,  120,  129,  131. 
Nevill,     Robert,     Bishop    of     Durham, 
chancery  roll  of,  330. 
constructed  a  building  for  the  chan- 
cery and  exchequer,  190  note  4, 
271  note  4. 
grants  made  by,  45,  62-63,  147,  319- 

320. 
indenture  between,  and  Sir  William 

Eure,  147  note  4. 
precedents  in  time  of,  for  allowances 

to  auditors,  268  note  5. 
proclaims  the  duke  of  York  protector 

of  the  realm,  125. 
retinue  of,  147. 
Nevill,  lord  Robert,  councillor  of  Bishop 

Kellaw,  145. 
Nevill,  Robert  de,  witnesses  a  charter  of 

Bishop  Kirkham,  139. 
Neville,    Robert   de,  justice  itinerant   of 

the  palatinate  (1279),  176,  177. 
Newbotell,  land  at,  held  of  Bishop  Kirk- 
ham, 265  note  I. 
Newbve,  a  thief  imprisoned  at   Carlisle 

Castle,  253. 
Newcastle-upon-Tyne,  36  note  i,  242,  323. 
bridge  at,  276. 


INDEX. 


369 


Newcastle-upon-Tyne,    council    of     the 
North  had  jurisdiction  over,  262, 
fugitive  debtors  from,  250-251. 
mayor  of,  250,  276,  284,  320. 
merchants  of,  245. 
mint  at,  279. 

statute  of  merchants  at,  97  note  5, 
250. 
Newton,  justice,  opinions  of,  relative  to 

counties  palatine,  218  note  3,  238,  258. 
Nicholas,  pope,  taxation  of,  293,  300. 
Nisi  prills,  commission  of,  not  used  in 

the  palatinate,  178  note  2. 
Non  obstante  clause,  used  by  the  Bishop 

in  mortmain  licences,  72-73. 
Non  omittas propter  libertatem,  writ  of,  246. 
Norfolk,  county  of,  25. 
Norfolk,  duke  of,  holds  assizes  at  Dur- 
ham without  commission,  74  note  6, 
261,  262  note  3. 
pacifies  the  North  (1537),  261. 
Norham  Castle,  built  by  Ranulf  Flam- 
bard,  91. 
constable  of,  40,  91,  151. 
outwork  against  the  Scots,  37. 
residence  of  Sir  Robert  Ogle  (1437), 

148. 
seized  by  Henry  II,  37-38. 
ward  of  the  Bishop  abducted  from, 
56. 
Norhamshire,  commission  of  the  Bishop 
to  raise  money  in,  152  note  2. 
coroner  of,  86. 
county  court  in,  195. 
exchequer  of,  267,  271. 
general  eyres  held  at,  by  the  palatine 

justices,  170. 
government  of,  by  Sir  Robert  Ogle, 

147-148,  151. 
inquests  taken  in,  by  the  king's  writ, 

241. 
justices  of,  170. 
manors  in,  43. 

parcel  of  the  county  of  Durham  al- 
though lying  m  Northumberland, 
20,  157  note  I. 
parish  church  of,  73. 
profits  of  jurisdiction  in,  291. 
quo  warranto  proceedings  in,  35. 
receiver-general  of,  267,  271  note  6. 
revenue  from,  277. 
sheriff"  of,  40,  86,  271  note  6,  311. 
steward  of,  80. 


Norhamshire,  surrendered  to  the  king, 

by  Bishop  Matthew,  294  note  3. 
Normans  in  Scotland,  29-30. 
North,  Council  of  the  ;  see  Council  of  the 

North. 
North  of  England,  special  government 

of,  259. 
Northallerton,  castle  of,  37-38. 
Northallerton,  parcel   of  the  county  of 

Durham  although  lying  in  York,  20. 
Northampton,  statute  of,  179. 
Northborough,  William  de,  justice  of  the 
palatinate  and  justice  itinerant  of  the 
king,  175-176. 
Northumberland,    county   of,    admiralty 
judge  for,  323. 
arrest  between,  and  the  palatinate 

subject  to  a  special  custom,  231. 
Council  of  the  North  had  jurisdiction 

over,  261-262. 
county  court  of,  127. 
criminals  in,  evade  justice  by  remov- 
ing to  the  palatinate,  226. 
exempted  from  taxation  in  the  Tudor 

period,  299. 
juries  drawn  from,  to  testify  regard- 
ing matters  in  the  palatinate,  166, 
186,  236,  240,  314. 
keeper    of    the   king's  escheats    in, 

44- 
king's  justices  in,  166. 
men  of,  claim  rights  in  the  forests  of 

the  bishopric,  59. 
part  of  the  see  of  Durham,  300. 
rights  of,  in  the  river  Tyne,  320. 
sheriff  of,  19,  217  note  4,  220,  224, 
229,  286. 
Northumberland,   duke    of,   admiral    of 
England  (1640),  323,  325. 
lord  warden  of  the  marches,  governs 
the  north  of  England,  259. 
Northumberland,  earls  of  jura  regalia  at- 
tributed to,  18. 
Northumberland,  earl  of  (1436),  is  to  re- 
ceive aid  from  the  Bishop  against 
the  Scots,  307. 
murder  of  (1488),  299  note  3. 
Northumberland,  Henry,  earl  of,  charter 

of,  138  note  3. 
Northumberland,   earldom  of,  bestowed 
on  Copsi,  17. 
bestowed  on  prince  Henry  of  Scot- 
land, 16,  17. 


3/0 


INDEX. 


Northumberland,  earldom  of,  bestowed 
on  Walcher,  Bishop  of  Durham, 
17,  137  note  I. 

does  not  appear  in  the  twelfth  cen- 
tury pipe  rolls,  18,  19. 

establishment  of,  17. 

extent  of  (1087),  18. 

forfeited  to  the  crown  (1071),  17. 

governed  by  Bishop  Walcher's 
nephew,  137  note  i. 

held  by  the  house  of  Bamburgh  (954- 

1055).  17. 
purchased    by   Bishop   Pudsey,   164 
note  I. 
Northumbria,  earldom  of,  division  of,  17. 
Northumbria,  kingdom  of,  annals  of,  158, 

333- 
lands  of  S.  Cuthbert  in,  157. 
men  of  S.  Cuthbert  formed  a  sepa- 
rate community  in,  109. 
survival   of    local  independence  in, 

109. 
thegns  of,  revolt,  17. 
united  to  Wessex,  16. 
witan  of,  16-17,  I09- 
Norton,    William,  clerk  of  the  palatine 

exchequer,  270  note  2. 
Norton,     William,      councillor     of     the 
Bishop,  receives  grant  of  a  pension,  147. 
Notitia  Dignitatum,  3. 

Octroi,  36,  277. 

Odeliva,  case  of,  233. 

Odo  de  Brenba  :  see  Brenba. 

Odo  of  Bayeux,  earl  of  Kent,  8-9. 

Officers,  of  the  Bishop's  household,  99- 

.     105,  139- 

distinguished  from  officers  of  state, 

11- 
Officers,  of  the  palatinate,  70,  77-99. 

ex  officio   members  of  the   Bishop's 

council,  147. 
not  feudalized,  77. 
Ogle,   Sir   Robert,   councillor  of   Bishop 
Langley,    governs     Norhamshire,    40, 
147-148,  151. 
Ordericus  Vitalis,  first  writer  to  use  the 
term  comes  palatinus  in  connection  with 
England,  8. 
Osbert,  son  or  nephew  of  Bishop  Flam- 
bard  and  sheriff  of  Durham,  80-81,  138. 
Osulf,  lord  of  Bamburgh,  becomes  earl 
of  Northumbria,  17. 


Oswald,  king  of  Northumbria,   endows 
the  see  of  Lindisfarne,  13-14. 
grants  liberties  to  Aidan,  15. 
Otto  I,  emperor,  increases  the  power  of 

the  comes  palatinus  of  Lorraine,  6. 
Outlawry,  of  criminals  taking  refuge  in 
the  palatinate,  251-252. 
decreed  in  the  national  courts,  was 
effectuated  in  the  palatinate,  220- 
222,  225-226. 
for  neglect  of  summons,  could  not  be 

applied  to  the  Bishop,  218. 
removed   in    the   palatinate   by  the 
Bishop's  pardon,  70. 
Ouse  and  Derwent,  forests  between,  6a 
Overconscliffe,  church  of,   149-150,  217, 
244. 
manor  of,  244. 
Oxford,  Balliol  College  at,  332. 

college  at,  founded  by  Bishop  Hat- 
field, 150. 
friars  minor  of,  248  note  i. 
Oyer  and  terminer,  commission  of,  in  the 
palatinate,  56,  174,  179, 

Page,  (Mr.  W).,  his  theory  of  the  origin 
of  the  palatinate,  16-21,  109. 

Pagetti,  of  Bishop  Skirlaw,  100. 

Palace  green,  at  Durham,  190  note  4,  271 
note  5,  280. 

Palatinus,  applications  of  the  adjective, 
7,  28. 

Pardoning  power,  of  the  Bishop,  68-70, 
196. 

Paris,  Matthew,  9-10,  333. 

Parliament,  authority  of,  over  the  palat- 
inate, 126-127. 

Pax  S.  Cuthberti,  108. 

Peace,  in  the  palatinate  was  the  Bishop's, 
32-33,  197. 
commission  of  the,  in  the  palatinate, 
178-179. 

People  of  the  bishopric,  buy  a  truce 
with  the  Scots  during  the  Bishop's  ab- 
sence, T2I,  305:  see  Assembly,  Bodies 
gentz  de  la  fraunchise,  Commonalty, 
Communitas,  Community,  ////  de  episco- 
patu,  Popuhis. 

Percy,  family  of,  222,  230  note  i. 

Percy,  John,  makes  forfeiture  to  the 
Bishop,  43. 

Peritiores,  trained  lawyers  in  the  Bishop's 
council,  146. 


INDEX. 


371 


Peter,  a  marshal  of  Bishop  Pudsey,  loi. 
Peter's  pence,  in  the  bishopric,  paid  to 

the  archbishop  of  York,  274. 
Pfalzgraf,  origin  of  his  powers,  6. 
Pie-powder,  court  of,  in  the  palatinate,  36, 

196. 
Pilgrimage   of  Grace,  54,  197,  255,  259, 

327- 
Pilkington,  James,    Bishop   of  Durham, 
complains  to  Cecil  of  his  difficulty 
in  defending  the  border,  294  note 

3,  309- 
jura  regalia  claimed  by,  48-49. 
transfers  the  fair  of  S.  Cuthbert  to 
the  corporation  of  Durham,  62. 
Pincerfta,  of  the  Bishop,  103,  139. 
Pipe  rolls,  334. 

Piracy,  on  the  Yorkshire  coast,  245. 
Pleas  of  the  crown,  cognizance  of,  in  the 
palatinate  belonged  to  the  court  of 
the  Bishop,  168,  170-172. 
held  in  the  prior's  court  by  usurpa- 
tion before  1229,  172. 
petitioned  for,  by  the  Bishop's  bailiff, 
172-173. 
Plenus  comitatus :  see  County  court. 
Poitiers,   counts    of,    styled    themselves 

comiles  palatini,  8. 
Poitou,    Philip    of.   Bishop  of    Durham, 
cases  of  wreck   occurring   in  the 
pontificate  of,  318. 
charters  of,  333. 
council  of,  139. 
death  of,  297. 
directed  by  the  king  to  arrest  Scottish 

outlaws  at  Holy  Island,  225-226. 
obtains  a  charter    from  king    John, 

313. 

Pole,  Michael  de  la,  earl  of  Suffolk,  for- 
feited lands  of,  48  note  i. 

Pole,  William  de  la,  Bishop's  warrant  to 
the  palatine  justices  in  favor  of,  71. 

Pontefract,  castle  of,  official  residence  of 
the  lieutenant  and  council  of  the 
marches,  260. 

Poor,  Richard,  Bishop  of  Durham,  cases 
of  wreck  occurring  in  his   pontificate, 

318-319- 

Population,  of  the  bishopric,  11 5-1 16. 

Populus  of  the  bishopric,  114,  115,  119: 
see  Assembly,  Bones  geniz  de  la  fraun- 
chise.  Commonalty,  Communitas ,  Com- 
munity, ////  de  episcopaiu,  People. 


Port  jurisdiction,  granted  to  Wearmouth, 

321. 
Potson,   Elias,  killed  at   Hartlepool  by 

John  Forwender,  252. 
Praecipe  quod  reddat,  writ  of,  217-218. 
Prescription,  liberties  of  the  Bishop  held 

by,  33- 
Prestone,    Adam     de,    testifies    to    the 
Bishop's  right  to  take  port  dues  (1229), 
320. 
Primer  seisin,  king's  right  of,  55. 

taken  by  the  Bishop  in  the  palatinate, 
55,  283. 
Prises  of  wine,  in  the  palatinate,  276-277. 
Private  truces,  with  the  Scots,  forbidden 

by  the  king,  305. 
Privy  council,  source  of  the  authority  of 

the  Council  of  the  North,  261. 
Procedure,  in  the  court  of  the  palatinate, 
167. 
new  forms  of,  introduced  by  Henry  II 
transmitted  to  the  bishopric,  112. 
Proclamations,   made   by   the   sheriff  of 

Durham,  84. 
Professors,  of  civil  law,  in  Bishop  Kel- 

law's  council,  146. 
Prohibitions,  192,  325. 
Provisors,      Edward      Ill's      ordinance 

against,  126  note  4,  184  note  4. 
Pruddoe,  a  murder  at,  229. 
Pudsey,    Henry,    son   and    councillor    of 

Bishop  Pudsey,  139,  172  note  5. 
Pudsey,  Hugh,  Bishop  of  Durham,  acces- 
sion of,  332. 
ambition  of,  27,  163-164. 
attempts  to  found  a  house  of  Augus- 

tinian  friars  in  the  bishopric,  50. 
Boldon  Book  compiled  by  his  order, 

149  note  3. 
cases  of  wreck  in  the  pontificate  of, 

changes  made  by,  in  the  judiciary  of 

the  bishopric,  163-165. 
charters  of,  138-139,  321,  333. 
cousin  of  Henry  II,  161. 
criminal  jurisdiction  of  the  court  of 

the  bishopric  saved  by,  169. 
dapifer  of,  102. 
escaped  payment  of  the  Saladin  tithe, 

297- 
familiarity  of,  with  the  legal  reforms 

of  Henry  II,  164-165. 
forfeits  castles  to  the  king,  89. 


372 


INDEX. 


Pudsey,  Hugh,  Bishop  of  Durham,  founds 

the  palatine  exchequer,  264. 

founder  of  the  palatinate  from  the 

point  of  view  of  legal  history,  169. 

grants  made  by,  35,  277,  321. 

held  pleas  in  his  court  by  his  own 

writ,  164,  166,  315. 
itinerant  justice  for  the  king,  164. 
justiciar  of  Richard  I,  164,  297. 
obtains  charters  from  Henry  II,  161- 

162,  320. 
obtains    an    iron    mine    from    king 

Stephen,  283. 
orders   his  debts  to   the  king  to  be 

discharged,  292. 
presides  over  a  court  of  barons  of 

the  bishopric,  io8. 
purchases  from  the  crown  the  wapen- 
take of  Sadberg  and  the  earldom 
of  Northumberland,  162  note  5, 164 
note  I. 
reports  to  the  king  the  number  of 

knights*  fees  held  of  him,  286. 
secret  treaty  of,   with  the    king  of 

Scotland,  37. 
share   of,   in    the  rebellion    against 

Henry  II,  302. 
sought  to  strengthen  his  feudal  posi- 
tion, 163-164. 
summoned  to   Westminster    (1194), 
225. 
Punchardon,  family  of,  138-139. 
Punishment,  of  malefactors  in  the  palat- 
inate, the  duty  of  the  Bishop,  33-34- 
Putot,  Roger  de,  witnesses  a  charter  of 

Bishop  Geoffrey,  138. 
Pygot,    Richard,    councillor    of    Bishop 

Booth,  147. 
Pynton,   Hugh,   dapifer  of   the   Bishop, 
conspires  with    the    intruder    Cumin, 
102. 

Quare  impedit,  writ    of,    165,  215,   243- 

244. 
Queringdonshire,  cornage  paid  by,  289. 
Qu^ilface  droit ^  writ  of,  211. 
Quo  warranto  ^xozt^d^ng?,,  against  Bishop 
Bek,  19,  20,  28,  34,  231. 
instituted    by   the    Bishops    in    the 
palatinate,  34-35,  278. 

Raby    Castle,    did    not   belong   to  the 
Bishop,  91  note  4. 


Raby  Castle,  fortified  by  the   Bishop's 

leave,  145  note  6. 
Radcliff,  Christopher,  murdered  at  Shers- 

ton,  253. 
Radulfus,   collector  of   Herrington,  270 

note  I. 
Raine,  James,  333. 
Rakett,  John,  receives  a  buck  from  Bishop 

Senhouse,  98. 
Randall's  manuscripts,  146  note  2. 
Randolf,  John,  a  commissioner  to  collect 

a  tax  for  Bishop  Hatfield.  120  note  i. 
Ransom,  of  prisoners  taken  on  the  border, 

40. 
Ranulf,  a  tax-gatherer,  story  of,  296. 
Reading,  abbot  of,  mint  of,  278. 
Receiver-general,  of  the  palatinate,  91-93' 
accounts  of,  92,  269-270,  330-331. 
corresponded  to  the   national  trea- 
surer, 92. 
office  of,  commonly  held  in  connec- 
tion with   the  chancellorship,  92, 
270. 
Receipt-roll,  of  the  palatinate,  330,  334. 
Recognizances,  much  used  for  contract  in 
the  palatinate,   97,  185 :  see   Contract, 
Statute  merchant,  Statute  staple. 
Record,  of  the  palatine  courts,  256,  314- 

315- 
Record  Office,  330,  337. 
Records  of  the  palatinate,  203,  269-270, 

327-337. 
Recovery  in   banco   of  land  in  counties 

palatine  is  void,  243. 
Red  Book,  transcripts  of  Durham  records 

used  by  Bishop  Cosin,  328. 
Regality,  of  the  Bishop  of  Durham,  61, 

67. 
classification  of,  31. 
general  estimate  of,  75-76. 
in  dominio^  54-67. 
in  imperio,  31-54. 
in  jurisdictione^  68-75. 
relation  to  distraint  of  knighthood, 
287-288 :   see  Durham,  Bishop  of, 
King. 
Registrar,  of  the  palatine  admiralty  court, 

324. 
Reid,  Thomas,  of  Welbery,  pardoned  by 

the  Bishop  for  theft,  242, 
Reliefs,  in  the  palatinate,  55. 
Rennyll,  John  de,  one  of  the  keepers  of 

the  marches  of  Scotland,  249. 


INDEX. 


373 


Restoration,  of  Charles  II,  200. 
Retinue,  of  the  Bishop,  147-148. 
Revenue,  of  the  Bishop,  estimated  amount 
of,  292-294. 
sources  of,  271-292, 
Richard  I,  king  of  England,  makes  Bishop 
Pudsey  justiciar,  297. 
revives  the  palatine  mint,  279. 
sells  Sadberg  to  the  Bishop  Pudsey, 
286. 
Richard  II,  king  of  England,  298.  325. 
Richard  III,  king  of  England,  loyalty  of 

Durham  to,  299. 
Richmond,   Henry   Fitz   Roy,    duke    of, 

king's  lieutenant  in. the  North,  259. 
Richmond,  honor  of,  extradition  between, 
and  the  palatinate,  229  note  i. 
juries  drawn  from,  241. 
part  of  the  earldom  of  Northumber- 
land (1087).  18. 
scutage  paid  by,  285  note  3. 
Ripon,  liberty    of,   extradition  between, 

and  the  palatinate,  229. 
Rising  in  the  North  (1569),  47,  198,294 

note  3,  327. 
Rivers,  and  sea-coasts  of  the  bishopric, 

jurisdiction  of  the  Bishop  on,  320. 
Robbery,  pardoned  by  the  Bishop,  70. 
Robert,  archdeacon  of  Durham,  138. 
Robert,    king    of    Scotland,    makes    an 
accorde  with   the   commonalty  of    the 
palatinate  {131 2),  39. 
Rocheford,  Aymer  de,  233. 
Roe,  Richard :  see  Doe,  John, 
Roger,  held  land  of  the  Bishop  in  Hel- 

mygdene,  265  note  i. 
Rome,  247  note  i,  274-275,  293. 
Romilly,  Sir  Samuel,  chancellor   of  the 

palatinate,  203. 
Rotherbiry,  David  de,  a  commissioner  to 

raise  a  tax  in  Durham  {131 5),  122. 
Royal    fish,    58,    63,   317,    319-320:    see 

"Whales. 
Royal  Franchise,  of  the  Bishop,  41,  44 : 
see  Durham,  Bishop  of,  King,  Regality. 
Rumsey,  John  de,  steward  of  the  palati- 
nate, 79  note  6. 
Russell,  Geoffrey,   justice  itinerant  and 

steward  of  the  palatinate,  175-176. 
Ruthall,   Thomas,    Bishop    of   Durham, 
complains  that  persons  guilty  of  theft 
in  the  palatinate  are  withheld  from  his 
jurisdiction,  252-253. 


Ruthall,    Thomas,    Bishop    of    Durham, 
policy  of,  260. 
privy    councillor    and    secretary    of 
state     under     Henry     VIII,     260 


note  I. 

Ryley,  manor  of,  in  Norhamshire,  forfeited 
to  the  Bishop,  43, 

Sadberg,    wapentake    of,    acquired    by 
Bishop  Pudsey,  19,  20,    162   note 
5,  286,  292. 
assize  roll  of,  86. 
coroner  of,  86. 
county  court  of,  195,  291. 
farm  of,  291. 
general  eyre  at,  252,  254. 
knights'  fees  in,  286. 
revenue  from,  277. 
sheriff  of,  85  note  6. 
venue  distinct  from  the  rest  of  the 

palatinate,  132. 
wards  of,  119. 

wreck  occurring  in,  belonged  to  the 
Bishop,  319. 
S.  Albans,  abbot  of,  suit  of,  against  the 

Bishop,  149-150,  181,  217,244. 
S.  Botolph,  William  de,  rector  of  Hough- 
ton, will  of,  224. 
S.  Botulph,  William   de,  archdeacon  of 
Durham  and  steward  and  councillor  of 
Bishop  Bek,  140. 
S.  Cuthbert,  Bishop  of   Lindisfame,   13, 
1 57,  295. 
body  of,  18,  22,  128,  148,  158. 
church  of,  before  the  Norman  con- 
quest, 21,  159. 
congregation  of,  21  note  i. 
devotion  of  the  north  of  England  to 

(1536),  255. 
feasts  of,  24,  108,  265. 
knights'  fees  in  lands  of,  286. 
lands  of,  25,  159,  163,  296. 
lordship  of,  286. 
men  of,  25,  109,  162,  296,  301. 
miracles  of,  158,  296,  317. 
patrimony  of,  156,  158,  226,  295,  302. 
rights  of,  over  the  river  Tyne,  320. 
shrine  of,  95  note  5,  133,  253. 
tenants  of,  109. 
S.  Hilda,  church  of,  at  Hartlepool,  87. 
S.  John  the  Baptist,  feast  of,  265. 
S.  Martin,  feast  of,  265. 
Sakeber,  132. 


374 


INDEX. 


Saladin  tithe,  not  collected  in  the   bish- 
opric, 296-297. 
Salisbury,  earl  of,  warden  of  the  marches 

(1434),  39- 
Sanctuary,  privilege  of,  87,  253-255. 
Sandale,  Sir    John,    correspondence   of, 

with  Bishop  Kellaw,  153. 
Sarracenus,  Petrus,  drew  a  pension  from 

the  palatine  exchequer,  264  note  2. 
Scarborough,  piracy  near,  245. 
Scocland  {ScoW^iwd.),  Jo^danus  Jilius,  113, 

Scotland,  borders  of,  castles  of  the  Bishop 
in,  38. 
condition  of  (1522),  259. 
disturbed  state  of,  in  the  fourteenth 

century,  272,  305-306. 
special  duty  of  the  Bishop  in  defend- 
ing, 303-307- 
undetermined  in  the  middle  ages,  29. 
Scotland,    kingdom    of,    failure    of    the 
royal  line   of,   29. 
invasion  of  (1322),  305. 
money  sent   to,  by  Bishop  Bury  to 

purchase  a  truce,  119. 
murderers  take  refuge  in,  252. 
relations  of,  with  the  Bishop,  36,  76. 
treaty  between,  and  England  relative 
to  the  recovery  of  shipwrecked  and 
stolen  goods,  245-246,  322-323. 
war  against,  307-309. 
Scotland,  kings  of,  endeavor  to  get  posses- 
sion of  the  northern  counties  of  Eng- 
land, 29. 
Scotland,  lowlands  of,  affinity  of,  to  the 

north  of  England,  29. 
Scotland,  marches  of,  Bishop's  letter  as 
to,  305  note  4. 
council  of,  259-260,  307-308. 
court  of,  249. 
defence  of  ( 1499),  308. 
troops    raised    in,    by  the    duke    of 

Gloucester  (1480),  307-308. 
wardens    of,    39,    249,    307-309:    see 
Scotland,  borders  of. 
Scot,  Robert,  councillor  of  Bishop  Pudsey, 

139- 
Scots,  aggression  of,  in  Edward  II's  reign, 

304- 
Bishop    of    Durham  a  brazen  wall 

against,  305-306. 
excluded  from  the  palatinate,  97, 188- 


Scots,  invasions  of  England  by,  28,  121- 
122,  299,  303,  305,  307-308. 
kinsmen  of  the  English,  ■t^^. 
truces  with,  purchased  by  the  Bishop 
and  his  subjects,  39,  119,  1 21-122, 
272  :  see  Scotland. 
Scottish  army  levies  contributions  on  the 

palatinate,  198-199. 
Scrope,  family  of,  45. 
Scrope,  Henry  lord,  of  Masham,  makes 

forfeiture  to  the  Bishop,  45. 
Scruteville,   John,    incurs    judgment    by 

default  in  the  palatinate  (1402),  251. 
Scutege,  285-287. 
Scutifer  familiarius,  of  Bishop    Skirlaw, 

100. 
Sea-coasts,  of  the  palatinate,  controlled 

by  the  Bishop,  38,  320. 
Seals,   of  the  palatinate,  broken   at  the 
shrine  of  S.  Cuthbert  on  the  death 
of  the  Bishop,  95  note  5. 
custody  of,  by  the  chancellor,  94,  95. 
earliest  surviving,  94  note  3. 
probably  committed  to  the  constable 
during  vacancies  of  the  chancellor- 
ship, 98-99. 
special,  used  during  vacancies  of  the 
see,  96. 
Seaton,  Roger  de,  justice  in  the  palatinate 

and  at  Westmins^^er,  175-176, 
Seaton  Carrowe,  manor  of,  63,  150,  319. 
Seebohm  (Mr.),  view  of,  regarding  corn- 
age,  289. 
Seggefield,  vill  of,  fair  and  market  erected 

at,  by  Bishop  Kellaw,  62. 
Seigniorial  jurisdiction,  growth  of,  in  the 

bishopric,  157-165. 
Selby,    John,    makes   forfeiture    to    the 

Bishop,  43. 
Selden,  John,  337. 
Senes  et prudentiores^  of  the  bishopric,  107, 

no. 
Senescallus :  see  Steward. 
Senes  callus  hospicii,  1 02-1 03. 
Seneschal,  of  a  French  fief,  6,  8,  80. 
Senhouse,  William.   Bishop  of  Durham, 

letter  of,  97-98. 
Serjeant-at-arms,  of  the  palatine  admiralty 

court,  324. 
Serjeant's  Inn,  204. 
Sewer :  see  Dapifer. 

Seyton,  Ropier  de,  witnesses  a  charter  of 
Bishop  Kirkham,  140. 


INDEX. 


375 


Shenefeld,  Henry  de,  vallettus  of  Bishop 

Hatfield,  loi  note  2. 
Sheriff,  of  the  palatinate,  80-86. 
accounts  of,  300,  331. 
authorized  by  Parliament  to  hold  in 
Durham  the  courts  usual  in  other 
English  counties  (1836),  206. 
commissions  of  appointment  for,  81- 

82. 
earliest  notices  of,  80-81. 
escheator  of  the  Bishop,  85. 
financial  duties  of,  85. 
judicial  functions  of,  83-84. 
member  of  the  Bishop's  council  ex 

officio,  148. 
military  duties  of,  82-83. 
oath  of,  on  taking  office,  82. 
police  duties  of,  84. 
statutes  and  acts  of  parliament  pro- 
claimed by,  126-127. 
Sheriff  Hutton,  castle  of,  official  residence 
of   the  lieutenant  and   council  of   the 
marches,  260. 
Sheriff's  tourn  :  see  Tourn. 
Sherston,  murder  committed  at,  253. 
Sherwood,  John,  Bishop  of  Durham,  281. 
Ship-money,  paid  by  the  palatinate,  299- 

300. 
Shire-moot,  of  Durham,  compared  to  the 
cour  pUnilre  of  a  French  fief,  iio- 
III. 
feudal  element  in,  11 1. 
folc-gemot  of  Haliwerfolc,  109-110. 
identified  with  the  assembly  of  the 

palatinate,  124. 
in  the  hands  of  the  Bishop  before  the 

Norman  Conquest,  no. 
meetings  of,  after  the  Conquest,  in. 
peculiar  development  of,  no. 
under  the  Anglo-Saxon  dispensation, 
109:  j^^  Assembly, 
Shotton,  vill  of,  cornage  paid  by,  288. 
Shropshire,  earldom  of :  see  Montgomery, 

Roger. 
Sigibert,  of  Neustria,  4. 
Sihtric,  sub-king  of  Northumbria,  16. 
Silkesworth,  land  in,  313-314,  316. 
Silvamis,  a  forest  officer  of  Bishop  Pud- 

sey,  139. 
Silver,  produced  in  the  bishopric,  58,  283. 
Simon,  camerarins,  chamberlain  and  coun- 
cillor   of  Bishop    Pudsey,   93    note    6, 
139- 


Skelton,  John,  extradition  of,  from  the 

palatinate,  229  note  i. 
Skirlaw,  Walter,  Bishop  of  Durham,  ap- 
points auditors,  367. 
legacies  of,  to   his  household,   100- 

lOI. 

mortmain  licence  issued  by,  74. 
state  kept  by,  100. 
Smalmen,  289-290 

Smedeton,  land  in,  subject  of  an  action 
before   the  king's  justices  (1200),  172 
note  5. 
Smedeton,  Inkelle  de,  172  note  5. 
Socburn,  earls  of,  66. 
Sockburne,  manor  of,  held  of  the  Bishop 

by  a  picturesque  service,  65-66. 
South  Shields,  245,  323. 
Spearman,    Gilbert,    part    author    of    a 
work    directed  against  the   palatinate 
(1729),  202-203. 
Spearman,  John,  part  author  of  a  work 
directed    against   the    palatinate,    106, 
189,  202,  336. 
Spelman,  Sir  Henry,  337. 
Spryng,  John,  murder  of,  69. 
Spryng,  Robert,  a  murderer,  pardoned  by 

Bishop  Kellaw,  69. 
Staindrop,  vill   of,  fair  and    market   at, 

62. 
Standard,  battle  of  the,  20,  302. 
Stanliburn',  320. 
Stapilton,  John,  extradition  of,  from  the 

palatinate,  229  note  i. 
Status,  of  the  Bishop  of  Durham,  53,  191- 

193,  301 ;  see  Capacities. 
Statute  merchant,  contract  by,  97  note  5, 
250-251  :  see  Contract,  Recognizances, 
Statute  staple. 
Statute  staple,  contract  by,  248-249,  251  : 
see    Contract,    Recognizances    Statute 
merchant. 
Statutes,  act'ons  created   by,  lay  in  the' 
palatine  courts,  125,  256-257. 
extended  to  the  palatinate  unless  there 
were    provision    to    the    contrary, 
125. 
proclamation   of,   in   the   palatinate, 

126-127. 
suspended   or  held   in   abeyance   by 
the  Bishop's  prerogative,7i-74. 
Stephen,  domijttis^   councillor  of   Bishop 
Bek,    141,    181    note    4:    see    Mauley, 
Stephen  de. 


37^ 


INDEX. 


Stephen,  king  of  England,  calls  Bishop 
Pudsey  his  cousin,  i6i  note  2, 
grants  an  iron  mine  to  Bishop  Pud- 
sey, 283. 
probably  allowed  the  establishment 

of  the  palatine  mint,  278-279. 
troubled  reign  of,  63. 
Stephen,  the   physician,  a  councillor  of 

Bishop  Pudsey,  139. 
Steward,  of  the  palatinate,  77-80. 

commissions  of  appointment  for,  78- 

79- 
compared  to  the  sin'echal  of  a  French 

fief.  So. 
contrasted  with  the  high  steward  of 

England,  80. 
earliest  notice  of,  78. 
economic  functions  of,  78. 
general  representative  of  the  Bishop 
in  the  government  of  the  palati- 
nate, 78. 
judicial  functions  of,  79. 
member  of  the   Bishop's  council  ex 

officio,  79. 
office  of,  never  feudalized,  79-80. 
political  functions  of,  78. 
Stichill,    Robert,    Bishop     of    Durham, 
chancellors  of,  95  note  5. 
council  of,  140. 
Stolen  goods,  recovery  of,  when  they  had 

been  taken  to  the  palatinate,  244-246. 
Stot,  John,  of  Whitby,  case  of,  250-251. 
Stranton,  manor  of,  dy 
Straylle,  George,  goldsmith  of  Durham, 

281. 
Stubbs  (Bishop),  view  of,  regarding  the 

concilium  regis,  141 -142. 
Sturfield,  John,  marshal  and  serjeant-at- 
arms  of  the  palatine  admiralty  court. 

324- 

Sturgeons,  319  :  see  Royal  fish,  Whales. 

Sub-escheator,  of  the  Bishop,  85. 

Subpoena,  writ  of,  185  note  3. 

Sub-sheriflf,  of  the  palatinate,  85. 

Subsidies,  raised  by  the  king  in  the  palat- 
inate, 116-118. 

Suffolk,  county  of,  25,  295. 

Suffolk,  earl  of,  admiral  of  England 
(1344),  311  note  3:  see  Pole,  Michael 
de  la. 

Summons,  in  the  national  courts,  of  the 
Bishop,  216-218. 
of  the  clergy  of  Durham,  223-224. 


Summons,  in  the  national  courts,  of  the 
laity  of  the  palatmate,  218-223:  see 
Arrest. 

Summons,  in  the  palatine  courts,  230- 
231. 

Sunderland,  borough  of,  received  a  char- 
ter from  Bishop  Pudsey,  79  note  4. 

Surrey,  earl  of,  king's  lieutenant  in  the 
north,  raises  troops  in  Durham  and 
Yorkshire  (1497),  308. 

Surtees,  family  of,  43. 

Surtees,  Robert,  his  history  of  the  county 
of  Durham,  335-336. 

Surtees  Society,  333,  335. 

Sussex,  county  of,  iron  produced  in, 
284. 

Sute  de  chivallers,  of  Bishop  Kellaw,  145. 

Swereford,  Alexander  de,  285  note  3. 

Symeon  of  Durham,  historical  works  of, 
14,  158,  332-333- 

Talbot,   William,   Bishop   of  Durham, 
abolished  the  office  of  under-sheriff, 
202. 
ignorance   of  the  law  displayed  by, 

203. 
unpopularity  of,  203. 
unwise  administration  of  the  palati- 
nate by,  203. 
Tallage,  of  the  Bishop's  boroughs  and 

manors,  292. 
Tallies,   little   used  at  the  palatine  ex- 
chequer, 269. 
Taxation,  of  the  clergy  of  Durham,  116, 

274-275. 
Taxation,  of  the  palatinate,  by  the  assem- 
bly, 116-118. 
by  the  Bishop,  1 18-120,  271-275. 
by   the   king    and  parliament,   273, 
275,  295. 
Taxes,   the    steward    of    the   palatinate 

authorized  to  impose,  272. 
Tees,  river,  320  ;  see  Tyne  and  Tees. 
Teines  et  Dreinges,  24,  108  :  see  Thegns. 
Tempest,  family  of,  205  note  5. 
Tempest,  Sir  Robert,  sheriff  of  the  palat- 
inate, 82  note  T. 
Tempest,  Thomas,  signature  of,  262  note  2. 
Temple,  Christopher,   chancellor   of   the 
palatinate,  sues  the  Ecclesiastical  Com- 
mission (1850),  207. 
Temporalities,  of  the  Bishop,  seizure  of, 
130,246-247. 


INDEX, 


Z77 


Thegns,  in  the  bishopric,   17,  289-290: 

see  Teines  et  Dreinges. 
Theobald,  count  of  Champagne,   styled 

comes  palatinuSf  8. 
Thomas,  hospicius  of  Bishop  Booth,  103. 
Thoresby,  Peter  de,  chancellor,  councillor, 

justice   itinerant,   and  receiver-general 

of  Bishop  Bek,  91-92,  95  note  5,  140. 
Thorneburgh,  William,  commissioned  by 

Bishop  Langley   to  collect   dues    and 

rents  in  the  palatinate,  90-91. 
Thorpe,  Francis,  a  baron  of  the  exchequer, 

199. 
Thorpe  Bulmer,  manor  of,  forfeited  to  the 

Bishop,  47. 
Thorpe    Theules,    manor    of   Hugh  de 

Louthre,  61. 
Tirwhit,    Adam,   marescallus   hospicii  of 

Bishop  Skirlaw,  loi. 
Tirwhit,  justice,   opinion   of,  relative   to 

counties  palatine,  238. 
Tisun,  Wido,  councillor  of  Bishop  Pud- 

sey,  139. 
Tolls,  on  sales  and  purchase,  132. 
Tong,  Parson,  records  of  the  church  of 

Brancepeth  saved  by,  328. 
Tostig,  earl  of  Northumbria,  17. 
Tottenham,  153. 
Toulouse,  counts  of,  styled   themselves 

comites  palatini,  8. 
Tourn,  of  the  sheriff,  in  the  palatinate, 

84,  194-195,  202,  290-291. 
Tournaments,   Edward   II's    prohibition 

of,  proclaimed  in  the  palatinate,   126 

note  4. 
Tower,  of  London,  escape  of  a  prisoner 
from,  252. 
warden  of,  281. 
Train,  Geoffrey,  witnesses  a   charter  of 

Bishop  Geoffrey,  138. 
Treason,  distinguished  from  felony,  41. 
Edward  Ill's  statute  regarding,  41, 

4S>  48. 
forfeiture  for,  in  the  palatinate  went 

to  the  Bishop,  41-50. 
Henry  VII I's  statute  regarding,  48- 
49. 
Treasure,   accumulated  by  the    Bishops 

in  the  fourteenth  century,  293-294. 
Treasurer,  of  the  Bishop's  household,  100. 
Treasure-trove,  in  the  palatinate,  58. 
Treaties,  with  foreign  powers,  might  not 

be  made  by  the  Bishop,  36. 


Trent,  river,  259. 
Trinoda  necessitas,  302. 
Troops,   contributions    of,  made   by  the 
Bishop  to  the  royal  army,  306. 
levied  by  the  king  in  the  palatinate, 

303-309- 
raised  in  the  palatinate  by  the  Coun- 
cil of  the  North,  309-310. 
Truces,  with  Scotland,  the  king  forbids 
the    people    of   the   palatinate   to 
make,  39. 
purchased    by  the   Bishop  and  his 
subjects,  39,  119,  1 21-122,  272. 
Truedall,  Gerard,  a  thief  imprisoned  at 

Carlisle  Castle,  253. 
Trustees,  of    the  bishopric,  during  the 
suppression    of    the  palatinate   (1646- 
1660),  199-200. 
Trykingham,   Lambert  de,  chief  justice 
of  Bishop  Kellaw  and  royal  justice  at 
Westminster,  177. 
Tunstall,  Cuthbert,  Bishop  of  Durham, 
acknowledges  the  king's  suprem- 
acy in  the  church,  54. 
forfeitures  of  war  taken  by,  47. 
in  disfavor  at  court,  54. 
letters  of,  54,  262  note  3,  327  note  i. 
lord-lieutenant  of  the  bishopric,  309. 
mint  of,  282. 
president  of  the  Council  of  the  North, 

54,  261,  262,  309. 
register  of,  332  note  2. 
Turgot,  prior  of  Durham,  94-95,  137. 
Turstan,  archbishop  of  York,  302  note  2. 
Tweed,  river,  275. 
Tweng,  Marmoduc  de,  313. 
Twysyle,  William  de,  founds  a  chantry 

at  Norham,  7^- 
Tyloff,    Peter,    execution    of    judgment 
passed  against,  in    the  court  of    the 
marches,  249. 
Tyne,  river,  bridge  over,  at   Newcastle, 
276. 
division  of  rights  over,  276,  320. 
navigation  of,  276,  321. 
Tyne  and  Tees,  boundaries   of  the  pa- 
latinate,     15,     128,     149,     156,     242, 
289. 
Tynedale,  franchise  of,  18,  249. 
Tynemeuth',  320. 
Tynemouth,  franchise  of,  18,  253. 
Tynwald,   the   assembly  of  the   Isle  of 
Man,  112. 


378 


INDEX. 


Ughtred  :  see  Dolfin,  son  of  Ughtred. 
Ulnage,  of  cloth,  in  Norham,  277. 

in  the  palatinate,  276-277. 
Ultimate  sequestrator,  in  the  palatinate, 

was  the  Bishop,  72. 
Uppelaunde    (the    open    country),  tolls 

not  to  be  taken  on  sales  in,  132. 
Urpath,  manor  of,  forfeited  to  the  Bishop, 

45- 
Urpath,  vill  of,  contributions  levied  on, 
by  the  under-forester,  60  note  4. 

Valentinus,  described  as  the  Bishop's 
chancellor,  95  note  3. 

Valleti,  of  the  Bishop,  100,  loi  note  2. 

Vane,  family  of,  205  note  5. 

Vane,  Sir  Henry,  199. 

Van  Mildert,  William,  Bishop  of  Dur- 
ham, 204. 

Venator,  of  Bishop  Pudsey,  139. 

Venire  facias,  writ  of,  217  note  4. 

Venue,  question  of,  between  the  palati- 
nate and  the  geldable,  234-243. 

Vescy,  William  de,  transfers  Alnwick 
Castle  to  Bishop  Bek  in  trust,  131 
note  I. 

Vesty,  John,  vallettus  de  coquiiia  of  Bishop 
Hatfield,  loi  note  2. 

Villeinage,  case  of  (1381),  183. 

Vills,  of  the  palatinate,   coroner  levies 
corn  sheaves  in,  87. 
of  the  prior,  representation  of,  at  the 
general  eyres  of  the  palatinate,  169- 
170. 

Vintners  of  the  palatinate,  136. 

Voucher  to  warranty,  between  the  palati- 
nate and  the  geldable,  232-234. 

Wager  of  battle,  a  late  case  of,  in  the 
palatinate  (1636),  263  note  2  ;  see  Duel. 
Waif,  58,  61,  85. 

Walcher,  Bishop  of  Durham,  murder  of, 
17,    107,    109,    136-137,    152,    159- 
160. 
no  charters  of,  137-138. 
obtains  the  earldom  of  Northumber- 
land, 17,  137  note  I. 
relations  of,  to  his  council,  136-137, 
152. 
Wales,  franchise  of,  234,  243,  258. 
Walkingham,   Alan    de,   justice   of    the 
palatinate  and  royal  justice  itinerant, 
176. 


Wallingford,  honor  of,  scutage  paid  by, 

285. 
Walter,  clericus,  172  note  5. 
Walter,  daoifer  of  Bishop  Pudsey,  102. 
Walter  :  see  Hugh,  the  man  of  Walter. 
Waltham,   Roger  de,  chancellor  of  the 

palatinate,  95  note  5. 
Waltheof,    earl   of  Northumberland,  17, 

137  note  I. 
Wardens  of  the  marches :  see  Scotland, 

marches  of. 
Wards,  of  the  palatinate,  85  note  6,  86, 

119,  194,  273. 
Wards,  court  of,  200-201. 
Wardships  in  the  palatinate,  56-57,  133, 

200-201. 
Warren,  grant  of,  61. 
Warwick,  Guy  de  Beauchamp,  earl  of,  re- 
ceives Barnard  Castle  from  the  king,  43. 
Wastall,  one  of  the  trustees  of  the  bishop- 
ric (1648),  199. 
Waste,  the  Bishop's  dues  from,  132. 
Waste :  see  Year. 
Water-courses,  320. 
Wear,  river,  fisheries  in,  91. 

grant  of  rights  over,  by  the  admiral 

of   England  protested  against  by 

Bishop  Morton,  323,  325. 

Weardale,  chief  forester  of  the,  60  note  4, 

97  note  2,  98. 

magna  caza  or  autumn  battue  in  the, 

60. 
mines  in  the,  283-284. 
Wearmouth,  borough  of,  port  jurisdiction 
granted  to,  by  Bishop  Pudsey,  321. 
shipwreck  at,  318. 
Welbery:  see  Raid,  Thomas. 
Welle,  Robert  de,  king's  bailiff  in  Tyne- 

dale,  249-250. 
Wessington,  John,  prior  of  Durham,  his- 
torical collections  of,  298  note  3. 
Westminster,  fine  levied  at,  in  1200  rela- 
tive to  lands  in  the  bishopric  regarded 
as  irregular  because   the  see  was  full, 
165. 
Westminster,  statute  of  (I),  i79'  226. 
Westmoreland,  county  of,  Council  of  the 
North  had  jurisdiction  over,  261- 
262. 
criminals  in,  evade  justice  by  remov- 
ing to  the  palatinate,  226. 
exempted  from  taxation  in  the  Tudor 
period,  299. 


INDEX. 


379 


Westmoreland,  county  of,  pipe  rolls  for, 

334  note  i. 
Westmoreland,  Charles  Nevill,  earl  of, 
lands  in  the    palatinate    forfeited  by, 
withheld  from   the   Bishop    by  queen 
Elizabeth,  47,  294  note  3. 
Westmoreland,  earl  of  (1436),  307. 
Westwyk,  Hugh  de,  185. 
Whales,      150,     319:     see     Royal    fish, 

Sturgeons. 
Wharton,  Thomas,  333. 
Whestwyk,    William  de,    pardoned   for 
homicide  by  the  king  and  the  Bishop, 
69-70. 
Whickham,  coal-mines  at,  284. 
Whitby:  see  Stot,  John. 
Whitelocke,  Sir  James,  opinion  of,  relative 
to  barony  by  tenure  of  the  Bishop,  (>t^ 
note  2. 
Whitharne,  vill  of,  coroner's  fee  paid  by 

(1548),  87  note  5. 
Whitlaw,    manor    of,    forfeited    to   the 

Bishop,  43. 
William,  abbot  of  S.  Mary's  York,  suit  of, 

against  John  de  Balliol,  165. 
William  I  (de  S.  Carilef),  Bishop  of  Dur- 
ham, associated  with  the  conspiracy 
of  1088,  89. 
charters  of,  138. 

feudalization  of  palatine  offices  attri- 
buted to,  89,  94-95. 
foundation  charters  of  the  convent  of 

Durham  ascribed  to,  107. 
immunities  possessed  by,  161-162. 
seals  attributed  to,  are  not  authentic, 

94  note  3. 
trial  of,  26. 
William  II  (de  S.    Barbara),  Bishop  of 
Durham,  charters  of,  138. 
settles  a  quarrel  between  the  prior 
and  archdeacon  of  Durham,  io8. 
William,  cancellarius,  13S  note  3. 
William,  chamberlain  of  Bishop  Geoflfrey, 

138. 
William  I,  king  of  England,  foundation 
of  counties  palatine  attributed  to,  12, 
169,  303- 
William  II,  king  of  England,  feudal  rela- 
tion of  the  Bishop  of  Durham  to,  301. 
liberties  possessed  by  the  Bishop  in 
the  reign  of,  296. 
William  the  Lion,  king  of  Scotland,  se- 
cret treaty  of,  with  Bishop  Pudsey,  37. 


William,  marshal  of  Bishop   Kirkham, 

lOI. 

Winchester,  church    of,  endowment   of, 

before  the  Norman  Conquest,  159. 
Winchester,  city  of,  moneyers  of  England 
summoned  to  (1208),  279  note  7. 
royal  mint  at,  278. 
Winchester,    see    of,    gross    income     of 

(1835),  294. 
Winchester,  statute  of,  125,  179,  302. 
Windebanke,  Sir  Francis,  300  note  i. 
Winston,    manor    of,    forfeited    to   the 

Bishop,  45. 
Wirece,  Aschetinus   de,  a  baron  of  the 

bishopric,  63. 
Wolsey,    Thomas,  Bishop    of    Durham, 
chancellor  of  England,  265  note  3. 
recommends  the  return  of  a  murderer 

to  the  palatine  sheriff,  253. 
reorganized   the    palatine    chancery, 

189. 
silver  coined  at  Durham  during  the 
pontificate  of,  281-282. 
Wolston,  family  of  Marshal  at,  loi  note  8. 
Wool,  granted  to  the  king  by  the  as- 
sembly of  the  palatinate,  114. 
Worcester,  church  of,  endowment  of,  be- 
fore the  Norman  Conquest,  159. 
Worcester,  Florence  of,  333. 
Wreck,  in  the  palatinate  belonged  to  the 
Bishop,  58,  62-63,  150,   193,   245-246, 
317-320. 
Writ,  of  the  Bishop,  addressed  to  himself, 
191. 
pleas  held  by,  in  the  palatinate,  164, 
166,  173,  210,  314-316. 
Writ,  of  the  king,  in  the  Bishop's  court, 
164.  166-167,  313-316. 
in  Northumberland,  before  the  Nor- 
man Conquest,  17,  19. 
ran  in  the  palatinate  after  1536,  196- 
197. 
Writs,  ordinary  judicial,  would  not  issue 
to  the  Bishop,  219. 
sale  of,  in  the  palatinate,  291. 
Wyclif,    Robert,     chancellor,    constable, 
and  receiver-general  of  the  palatinate, 
188  note  I,  190  note  3,  270  note  i. 

Year,  day,  and  waste,  right  of  the  Bishop 
to  have,  in  the  palatinate,  57. 

Yonge,  Robert,  confession  of,  in  the  pala- 
tine chancery,  188. 


38o 


INDEX. 


York,  Abbot  of  S.  Mary's :  see  William, 

Abbot  of  S.  Mary's,  York. 
York,  archbishop  of,  coinage  of,  281. 
commissaries  of,  imprisoned  at  Dur- 
ham, 53. 
court  of,  141. 

excommunicates  Bishop  Bek,  53. 
forbidden   by  the   king  to  tax   the 
palatinate  under  authority  of  papal 
letters,  274-275. 
interest  of,  in  the  affair  of  John  de 

Creping,  135. 
life  of,  saved  by  Guiscard  de  Char- 

ron,  140  note  7. 
Peter's  pence  in  the  bishopric  paid 

to,  274. 
relations  of,  with  the  Bishop,  53. 
York,  church  of,  endowment  of,  before 

the  Norman  Conquest,  159. 
York,  city  of,  bullion  purchased  at,  280. 
Council  of  the  North  had  jurisdiction 

over,  262  note  3. 
goldsmith   of,  commissioned  by  the 
Bishop   to   make   implements  for 
the  palatine  mint,  280-281. 
mint  at,  280,  281. 

monks  of  Durham  arrested  at,  230. 
Sir  John  Jonsone  of :  see  Jonsone,  Sir 
John. 
York,  county  of,  communitas  of,  297. 
Council  of  the  North  had  jurisdiction 
over,  261-262. 


York,  county  of,  criminals  in,  evade  jus- 
tice by  removing  to  the  palatinate, 
226,  252. 

juries  drawn  from,  to  testify  to  affairs 
in  the  bishopric,  166,  236,  314. 

knights'  fees  held  of  the  Bishop  in, 
286. 

lands  in,  belonging  to  the  Bishop, 
I57>  217. 

lands  in,  held  by  John  de  Eure, 
214. 

people  of,  refuse  to  pay  a  tax  (1488), 
299  note  3. 

question  of  the  possession  of  lands 
in,  raised  before  the  palatine  jus- 
tices causes  the  plea  to  be  discon- 
tinued ( 1341 ),  184, 213  :  see  Lincoln, 
county  of. 

royal  justices  in,  212. 

sheriff  of,  217,  224,  229  note  i,  255, 
285. 

ship  captured  off  the  coast  of,  be- 
comes royal  forfeiture,  245. 

shire-moot  of,  124. 

troops  raised  in,  by  the  Council  of 
the  North,  309. 

troops  raised  in,  by  the  earl  of  Sur- 
rey, 308. 
York,  duke  of,  proclaimed  protector  of 

the  realm  by  the  Bishop  (1455),  125. 
York,  province  of,  convocation  of,  300. 
York,  see  of,  294,  329  note  i. 


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